Assange Extradition Ruling: Briefing Note as of September 2022

In summary:

On 4 January 2021, a UK judge ruled that it was unsafe to extradite Julian Assange to the United States, and that if an extradition is ordered, this would likely result in his death.
The United States wants to prosecute Assange for common journalistic practices after he published documents containing evidence of U.S. war crimes in 2010. He faces up to 175 years in prison.
The decision to prosecute Assange has been universally condemned by free speech groups, newspapers and experts as an unprecedented threat to press freedom everywhere, including in the UK.
Assange is an unconvicted “remand” prisoner in Belmarsh high-security prison. He has been there for 37 months. He faces incredibly difficult conditions of isolation, which are compounded by the COVID pandemic. 97 prisoners in Assange’s house block had tested positive for COVID by the end of December 2020, including the prisoners in the cells on either side of Assange. There have been a number of COVID deaths, suicides and murders at Belmarsh during the time that Assange has been there.
If the new U.S. Administration’s Department of Justice drops the charges, this would put a sudden and definitive end to this extraordinary political prosecution and end the gravest attack on press freedom in living memory.
RSF and other press freedom groups have written, “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.”
Assange is not being prosecuted for publishing bulk databases.
UK courts have consistently described Julian Assange as a journalist and Wikileaks as a media organization since 2011. The U.S. government’s position on his status is therefore irrelevant from the UK perspective (he is also a member of his journalism union in Australia since 2006 and has won numerous top journalism prizes).
Assange is not being prosecuted for “putting lives at risk”. The “criminal acts” Assange is being accused of is possessing, receiving and disseminating (publishing) classified information which the U.S. government says was harmful to U.S. national interests.
The U.S. has testified under oath that there is no evidence that any person has been harmed as a result of WikiLeaks publications.
The single computer misuse charge makes up only 5 years of the 175-year potential sentence. The U.S. does not claim that Julian Assange “hacked” anything. The U.S. theory is that Assange and Manning tried to hide Chelsea Manning’s identity. The U.S. does not claim the purpose was to access classified information, and indeed the chronology shows that Manning had already provided Wikileaks with the material and had full authorized access by the time this alleged conversation took place.

The U.S. government’s key witness Sigurdur Thordarson—who was granted immunity by the Trump administration in exchange for his testimony that provided the basis for the second superseding indictment against Assange—has recanted his testimony and admitted that he lied about his allegations.
Cryptome.org was the first to publish the unredacted U.S. State Department cables. The U.S. does not dispute that Cryptome published a full day before WikiLeaks. Cryptome’s owner has not been prosecuted and has not even been served with a takedown notice.
A 75-minute phone call between Assange and the U.S. State Department was leaked over the Christmas period. The phone call took place a full week before Cryptome published the unredacted 250,000 U.S. State Department cables and demonstrates that the U.S. case is not only unfounded, but profoundly misleading. In the conversation, Assange warns the State Department that third parties would release the unredacted cables onto the Internet, and he advised the U.S. government on how to stop it or mitigate it.
On 26 September 2021, Yahoo! News reported on the CIA’s proposals and discussions in 2017 to kidnap and render and even to assassinate Julian Assange
- “Discussions over kidnapping or killing Assange occurred ‘at the highest levels’ of the Trump administration, said a former senior counterintelligence official. ‘There seemed to be no boundaries.’”
  - The CIA’s plans drove the DOJ’s prosecution
    - “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.”

Extradition judgment– 4 January 2021

On January 4, 2021, a British judge ruled to block the U.S. extradition of WikiLeaks publisher Julian Assange on grounds that his extradition would be “oppressive” because it would result in his death. The conclusion rested on medical evidence that his Autism Spectrum Disorder diagnosis, combined with his psychiatric history (including the period pf confinement in the embassy and current incarceration) and the prospect of U.S. imprisonment resulted in a high likelihood of suicide. The judge also concluded that these factors meant that the mere order of extradition could trigger his suicide.

The U.S. government is attempting to extradite Assange in order to prosecute him for publishing evidence of war crimes in 2010. For more than two years, Assange has been detained in London’s highest-security prison—HMP Belmarsh—as he fights extradition.

The U.S. Justice Department is requesting extradition on charges that legal scholars testified would “radically rewrite the First Amendment” by criminalizing the soliciting, possession, and publishing of government information, regardless of its public interest value. If sent to and tried in the United States, a conviction would be all but guaranteed, as Assange would not be allowed to argue in court that his actions were justified. For publishing stories that won numerous journalism awards, Assange faces up to 175 years in prison.

Assange’s extradition hearing focused on three main arguments:

that the indictment of Assange is an unprecedented and dangerously overbroad attempt to criminalize basic journalistic activity
that the prosecution — which Obama declined to introduce and which the media-hostile Trump made its “priority” — is politicized
that sending Assange to the U.S., when he has Asperger’s syndrome and clinical depression and where experts testified would most likely be placed in solitary confinement for the rest of his life, would endanger his life and put him at grave risk of suicide.

The judge accepted this last point. The magistrate delivered a lengthy decision recounting the U.S. government’s claims, the defense’s responses, and which aspects she agrees with before ultimately ruling to deny the extradition request.

It is important to note that the UK magistrate only made findings of fact with regards to the medical evidence. U.S. prosecutors’ arguments are presumed to be true, and the defence cannot cross-examine those claims.

Decision Overturned (Dec. 2021) & U.S. “Assurances”

The U.S. government, having lost at the Magistrate’s court, appealed that decision to the UK’s High Court, which heard appeal arguments October 27 and October 28 of last year (see Julian Assange’s appeal defense here). Those arguments dealt primarily with psychiatrists’ assessment of Assange’s suicide risk if his extradition were ordered, and the prison conditions Assange would face in the United States.

The High Court ruled in the U.S. government’s favor, overturning the District Court’s ruling after accepting the U.S. government’s so-called “assurances” regarding the conditions Assange would face in pre- and post-trial confinement. These “assurances” include caveats that render them meaningless: the United States can still use these measures if it decides that Assange “do[es] something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX.” Amnesty International says, “Such latitude to alter the terms of the core assurances after Assange’s transfer to the US renders them irrelevant from the start since he would remain at risk of ill-treatment in US detention at the point of transfer and afterward.”

Julia Hall, Amnesty International’s Expert on Counter-Terrorism, Criminal Justice, and Human Rights, says, “Those are not assurances at all. It is not that difficult to look at those assurances and say: these are inherently unreliable, it promises to do something and then reserves the right to break the promise.”

Responding to the High Court’s decision to accept the US’s appeal against the decision not to extradite Julian Assange, Amnesty International’s Europe Director Nils Muižnieks said:

“This is a travesty of justice. By allowing this appeal, the High Court has chosen to accept the deeply flawed diplomatic assurances given by the US that Assange would not be held in solitary confinement in a maximum security prison. The fact that the US has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on.
“If extradited to the US, Julian Assange could not only face trial on charges under the Espionage Act but also a real risk of serious human rights violations due to detention conditions that could amount to torture or other ill-treatment.
“The US government’s indictment poses a grave threat to press freedom both in the United States and abroad. If upheld, it would undermine the key role of journalists and publishers in scrutinizing governments and exposing their misdeeds would leave journalists everywhere looking over their shoulders.”

What happens next?

What happens now that Priti Patel has signed the extradition order?

Despite a renewed call from civil liberties groups, press freedom groups, and leading newspapers to drop the case against Assange, UK Home Secretary Priti Patel signed off the amended extradition order following the High Court’s ruling.

Assange’s defense team has submitted its application to appeal the extradition order to the High Court again, this time on the other substantive issues from the original Magistrates’ ruling that were not discussed at the previous appeal. These issues include a politicized prosecution, the threat the charges pose to the First Amendment, and the likelihood Assange would face a fair trial in the Eastern District of Virginia.

At any time, if U.S. Attorney General Merrick Garland decides to drop the charges, in keeping with the Obama Justice Department’s policy not to prosecute Assange and grant clemency to Chelsea Manning, Julian Assange will immediately walk free.

If the final decision comes from an appeal at the High Court, it will most likely be a matter of months. If the case goes through each stage of appeal to the European Court, the process could take several months.

Implications for Press Freedom

The indictment and extradition request for Assange raises grave and extraordinary concerns for press freedom:

The indictment criminalizes public interest journalistic activity: legal scholars testified at the Assange hearing that his prosecution on this indictment would put an end to national security journalism and “radically rewrite the First Amendment” by criminalizing the soliciting, possession, and publishing of government information, regardless of its public interest value.
The U.S. government is seeking to exercise jurisdiction over a foreign publisher and journalist, while at the same time claiming that Assange will not benefit from constitutional free speech protections because he is a foreigner (an Australian citizen), opening the door for the U.S. government to extradite other journalists and publishers without offering them free speech protections; this also opens the door for other countries to prosecute foreign journalists outside their jurisdiction for doing their jobs, and will allow them to use these tools to judicially persecute exiled dissidents.
Accepting U.S. arguments about double criminality under the Official Secrets Act in the UK means that UK court is locking in the Trump administration’s approach to the prosecution of journalists under the law in this UK, making republication of a document that has previously published a crime, and accepting for the first time the prosecution of a publisher or media worker for clearly newsworthy information.

There has been widespread concern expressed by international organizations and media organizations across the political spectrum about the free speech implications of the extradition and prosecution of Assange. See more here.

In March 2020, two dozen leading U.S. press freedom organizations cosigned a letter to the U.S. Department of Justice, calling for the charges against Assange to be dropped immediately. They write,

“The indictment of Mr. Assange threatens press freedom because much of the conduct described in the indictment is conduct that journalists engage in routinely—and that they must engage in in order to do the work the public needs them to do. Journalists at major news publications regularly speak with sources, ask for clarification or more documentation, and receive and publish documents the government considers secret. In our view, such a precedent in this case could effectively criminalize these common journalistic practices.”

Prison Conditions in the UK

Assange remains detained in HMP Belmarsh, a high-security prison. There have been constant issues with his prison conditions, which have been compounded by the further restrictions imposed during the COVID pandemic. There have been at least 97 cases of COVID in Belmarsh alone, with several deaths reported. There has been a COVID outbreak in Assange’s prison block, where he is at serious risk of contracting COVID and suffering serious medical complications because of his existing respiratory issues.

For example, before COVID, his legal team reported:

Difficulties in access to visits to Assange for the purposes of preparing their case
Difficulties in ensuring Assange had adequate facilities for preparing his defence, including delays in legal papers reaching Assange by post, not being permitted to physically deliver him legal papers, delay in the provision of a laptop to enable him to be able to review the extensive material required for his defence, and so on; and
His isolation within the prison and being kept in his prison cell up to 23 hours a day.

Since COVID, his situation in prison has become more difficult, including:

No in-person legal visits due to COVID restrictions
No videoconferencing because of the risk of COVID transmission (when video conferencing has been permitted during COVID, the waiting list is approximately 6 weeks)
No social visits due to COVID restrictions, which meant Assange was completely isolated from contact with his partner, their small children and his family and friends between late March- mid August and November 2020.
Due to the COVID outbreak in his prison block, he has for long periods been kept in his cell 24/7, unable to leave his cell to exercise or to shower.

The judge refused a bail application made in early 2020 despite the concerns raised by Assange’s lawyers in relation to the risk of COVID in prison and his ability to properly prepare his defence. Since her decision, there have been several COVID related deaths at Belmarsh prison. After winning his case at the Magistrates Court on 4 January, Assange applied for bail. Bail was refused despite the ruling in his favour in relation to U.S. extradition.