Security and Speech

Two of the grounds of appeal granted to Assange center on concerns that Assange could be denied First Amendment rights because he is a foreign national. Such a situation would both see Assange subjected to prejudice based on his nationality and deprived of any free expression rights. This fear was not concocted out of thin air. It is based on the statements the lead US prosecutor voluntarily submitted to the UK judiciary.

Throughout the extradition proceeding, US Attorney Gordon Kromberg, the lead prosecutor in the case, has provided the court with a number of sworn declarations. Kromberg is a notorious figure. He has been accused of politically motivated prosecutions and bias against Muslims. In addition to leading the Assange prosecution, he also prosecuted drone whistleblower Daniel Hale. I was present in court for Hale’s sentencing, and Kromberg’s animosity for the courageous whistleblower was clear: at one point, Kromberg compared Hale to a heroin dealer.

The goal of Kromberg’s declarations is to show that Assange’s case is not political, and that Assange would be treated fairly in a US court. To illustrate this point, in a June 2020 declaration, Kromberg argued that if Assange were to be extradited to the United States, he would have the opportunity to challenge the indictment before “independent federal judges.” Kromberg preemptively listed out the types of challenges Assange and his defense team may make. They could argue, according to Kromberg, that Assange was the victim of selective prosecution, that his conduct was protected by the First Amendment, and that the Espionage Act is unconstitutionally vague.

As the lead prosecutor in this and other Espionage Act cases, Kromberg wanted to make clear that “the United States has arguments against these potential challenges to the superseding indictment, and does not believe that they would have any merit; otherwise, it would not have proceeded with the charges.” One such defense? Kromberg wrote, “Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information”

The intent of Kromberg’s declaration was to show how Assange would receive fair treatment in the United States, thus paving the way for his extradition. By stating the US government might attempt to deprive him of fundamental human rights protections on the basis that he wasn’t a US citizen, the veteran national security prosecutor achieved the opposite result.

The UK Court granted Assange two separate potential points of appeal based on Kromberg’s blunder. First, Assange can appeal on the grounds that he would be subjected to prejudicial treatment as a foreign national. Second, if the First Amendment may not apply to Assange, Assange can appeal the extradition on the basis that it violates the Article 10 of the European Convention on Human Rights guarantee of free expression.

When it comes to Article 10’s right to free expression, Assange’s defense proffered a much wider, more robust range of arguments. They argued that Assange exposed war crimes and faces prosecution for doing so. Under European human rights law, they also argued, Chelsea Manning is a whistleblower, and those who expose state criminality deserve protections.

Assange was only granted the right to appeal based on Article 10 in relation to Kromberg’s comments. When it comes to the broad issue of whether prosecuting a journalist for reporting on war crimes revealed by a whistleblower is a flagrant violation of free expression rights, the UK High Court denied Assange’s right to appeal. In doing so, it displayed a shocking contempt for journalism.

The court argued that the European Court of Human Rights rulings “do not support the proposition advanced by the applicant that whistle-blowers or journalists have an immunity from prosecution in respect of criminal conduct in the course of journalistic activities.” This statement is, of course, at face value, true. Yet saying a journalist cannot commit crimes is different than criminalizing journalism itself.

The UK High Court seems to find little about the Assange prosecution troubling from a free expression perspective. Assange faces eighteen felony counts. Seventeen of the counts were brought under the Espionage Act and concern information given to WikiLeaks by whistleblower Manning about war crimes and abuses of power. Press freedom and human rights groups have been universal in their rejection of the Espionage Act charges.

Yet according to the UK High Court, only three of the charges brought against Assange “directly concern freedom of expression.” The remaining fifteen allegations “are of what may be described as ordinary criminal offences.” Of the charges where the court found a free expression nexus — publishing the Iraq and Afghanistan significant activity reports and the State Department cables — the Court argued that since these documents contained the names of individuals who shared information with the US government, there was no strong public interest in publishing them.

The UK High Court accepted, based on declarations from Kromberg, that in prosecuting Assange for three of the most consequential and groundbreaking publications about US foreign policy in history — the Afghan War Diary, the Iraq War Logs, and Cablegate — the United States is really pursuing a narrow interest in protecting the safety of foreigners who share information with the United States.

This analysis is glaringly wrong for a number of reasons. These publications, which major newspapers around the world participated in, absolutely were in the public interest. There is no evidence from anyone, including the US military, that any harm was done to anyone as a result of these publications, which were clearly in the public interest.

And Assange and WikiLeaks were far from reckless. Multiple media partners testified during the initial extradition hearing about WikiLeaks’s stringent redaction and larger information security policies. John Goetz, an investigative journalist who represented Der Spiegel in their media partnership with WikiLeaks, explained that while working on the Afghan War Diary, Assange agreed to vet documents for their potential to cause harm to individuals. WikiLeaks delayed the release of fifteen thousand pages of documents as part of a harm minimization process. Goetz described the security measures taken as the most stringent he ever encountered as a journalist.

When it came to the Iraq War Logs, WikiLeaks took even more stringent precautions to redact the names of informants. John Sloboda of the Iraq Body Count testified during the original extradition hearing how his organization developed a computer program for WikiLeaks to redact informants’ names in the four hundred thousand pages of documents. Wikileaks were so insistent on redactions, it annoyed their partners in the mainstream media, who were upset it was slowing down publications. Another WikiLeaks media partner, Italian investigative journalist Stefania Maurizi, also testified that the precautions were the strictest she had ever encountered as a journalist, noting that not even her colleagues working on stories about the Italian mafia had ever adopted such strict security protocols.

By point of historical comparison, the copies of the Pentagon Papers given by Daniel Ellsberg to the media did contain unredacted names of intelligence sources and even a CIA officer. Ellsberg believed — correctly — that the public interest in releasing the Pentagon Papers outweighed these concerns.

When a breakdown in security occurred, it was not WikiLeaks but their media partners who caused it. With the State Department documents, WikiLeaks continued its policy of strict redactions to protect informants and tight information security. A Guardian reporter published the password to the encrypted files as a chapter title in his book. This set off a series of convoluted events whereby individuals online were able to access the entire document set. Assange and WikiLeaks notified the State Department, but its officials showed no interest in engaging with him.

Only after other websites published the complete, unredacted State Department cables did WikiLeaks follow suit. None of these publishers have been indicted under the Espionage Act, even though the editor of Cryptome, the first site to publish the unredacted cables, has taken the unusual step of asking the government to indict him. If the government was concerned solely with informants’ names, it would have pursued those who first published them.

The court found that because the US First Amendment so closely resembles Article 10 of the European Convention of Human Rights that its existence and Assange’s ability to rely on it means Assange’s extradition doesn’t violate Article 10. This, of course, depends on the United States not arguing Assange has no First Amendment rights.

On other political expression grounds, the High Court also denied Assange the right to appeal on the basis that he was persecuted for his political opinions or that he was being extradited for a political offense. The US-UK Extradition treaty bars extradition for political offenses, but a 2003 UK extradition law omits the language. According to the High Court that means judges cannot weigh the issue. By this logic, a judge must order an extradition that clearly contravenes the language of the treaty.

Attempted Murder

The other issue that most alarmed the judges during February’s hearings was the lack of death penalty assurances. None of the charges against Assange carry the death penalty. Although it is not impossible that the United States could pursue new death penalty charges, it is a very remote possibility. During February’s hearing, Assange’s defense outlined several scenarios under which the United States could pursue death penalty charges. When British prosecutors, who under UK extradition law represent the United States in court during extradition proceedings, were asked about this, they asserted the defense’s theories were correct. They further stated that under such a circumstance, the UK government would be powerless to stop the United States.

UK law forbids the government from extraditing someone if they might face the death penalty. The law here is clear-cut. As a result, it is unsurprising that the High Court granted Assange the right to appeal on the death penalty.

While the Court showed concern about the death penalty, it was shockingly indifferent to the US government’s extrajudicial plots on Assange’s life. The High Court expressly prohibited Assange from raising fresh evidence about CIA plots to assassinate or kidnap him during a potential appeal. During the original extradition hearing, the court heard from multiple witnesses from Spanish security contractor UC Global. The witnesses detailed how the company spied on Assange and plotted to kidnap or poison him. In their belief, these actions were taken at the behest of the CIA. These allegations are the subject of a criminal investigation in Spain.

Since the original hearing, Yahoo! News reported on the existence of CIA plots against Assange, including how the CIA considered (but ruled out) assassinating Assange. Whereas the hearing testimony had come from UC Global employees, the Yahoo! News report was based on insiders within the US government.

Assange’s defense has correctly asserted that this is further proof of the assassination plot against him. The UK High Court doesn’t reject this; it just doesn’t care. Their reasoning for denying fresh evidence is precisely because this “fresh evidence is similar to the evidence that was before the judge.” The judges admit they find the evidence presented credible, and that it “is of the utmost seriousness.”

If the plot to assassinate Assange was “connected to his extradition,” it would be a barrier to his extradition. Yet the High Court agreed that it wasn’t an issue, on the most absurd reasoning. “Extradition would result in him being lawfully in the custody of the United States authorities,” the Court wrote, “and the reasons (if they can be called that) for rendition or kidnap or assassination then fall away.” Thus it is okay to extradite Assange to the country that plotted to murder him.

And the judges do not want to hear anything more about the plots against him.

Empty Assurances

Although Assange has been granted leave to appeal on these extremely narrow grounds, an appeal might not happen. The High Court has granted leave to appeal only if the United States does not offer additional assurances. If the United States can guarantee that Assange “is permitted to rely on the First Amendment,” that the case against Assange is not prejudiced at trial (including sentencing) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen, and that the death penalty will not be imposed, then there will be no appeal, as long as the court finds the assurances satisfactory (Assange’s lawyers will have the right to challenge the assurances).

Most of the assurances are fairly straightforward. Given that the United States is not seeking the death penalty against Assange and has given similar assurances not to seek the death penalty against Edward Snowden in the past, it seems likely it will comply.

The most complicated assurance to parse is what it means for Assange to be able to “rely on the First Amendment.” In a criminal trial, the First Amendment would come into play in a number of ways. The defense can challenge a statute as either being unconstitutional in and of itself, or argue that although a statute itself is constitutional, its application in a specific case is unconstitutional. Often in criminal trials, the defense will mount both arguments: the statute is unconstitutional and should be struck down in its entirety, but even if it is constitutional, in this case it is being applied in an unconstitutional manner. In the US legal system, such questions are considered questions of law for a judge, not a jury, to decide.

Additionally, even if a statute or specific charge isn’t dismissed, the defense could argue that if the government wishes to convict Assange for pure speech, it must prove a high degree of intent. Such a requirement would be reflected in any instructions the judge gave the jury on what the government must prove beyond a reasonable doubt to convict Assange.

Unless a US trial takes place, we do not know what Assange’s lawyers will or will not argue. However, given the fact that Assange and his legal team have always stressed the press freedom and free expression issues with his prosecution, it doesn’t require clairvoyance or even a bold prediction to suggest that they will probably fight the prosecution on the basis of the First Amendment.

Assange is the first publisher indicted under the Espionage Act. But in the past, government insiders who acted as whistleblowers or journalists’ sources have been indicted. Citing the First Amendment, they have moved to have their charges dismissed outright or argued that the government must prove the defendant had a “a specific intent or evil purpose.” In all of these cases, courts have rejected these arguments, absurdly finding there are no First Amendment issues with prosecuting government employees who aided in news gathering.

As a publisher, not a whistleblower, Assange’s case is different. But the question arises: Would the UK High Court believe the aforementioned defendants were able to “rely” on the First Amendment? The government did not challenge whether the defendants had First Amendment rights, but instead argued the First Amendment did not protect their whistleblowing. They were able to raise First Amendment arguments, but judges rejected them.

In my reading of the UK High Court’s decision, it only requires a US court to take into account the First Amendment, not rule that it protects Assange’s clear journalistic activity. When denying the bulk of Assange’s free expression arguments, the court ruled the judges were making their findings on the assumption that, contrary to Kromberg’s declaration, Assange would have the same rights as a US citizen. Only when dealing with the potential that Assange would be granted no protections as a foreign national did the court find a problem. In his declaration, Kromberg mentioned other potential arguments that the government would raise in response to Assange’s potential First Amendment claims. Not only did the UK High Court not object to them, the judges mimicked them in their own dismal finding that the charges against Assange didn’t pose a threat to his free expression rights.

A cynical interpretation is that the UK High Court was ready and willing to rubber-stamp the persecution of a journalist for exposing war crimes. The unnecessary comments of Kromberg that the government may argue Assange lacked First Amendment rights as a foreign national and UK prosecutors’ bumbling replies to questions about the death penalty made it impossible for them to do so. Now, with the request for assurances, its judges are instructing United States and UK prosecutors on what they must say in order to make the extradition succeed.

Global Stakes

Any day Assange is granted another chance to fight for his life, his personal freedom, and the rights of press freedom and free expression is ultimately a good day. But the UK High Court’s decision, while not the worst scenario, is deeply disturbing. In granting Assange only the most limited appeal rights, they deliberately closed their eyes to the press freedom issues at stake and showed a grotesque indifference to Assange’s basic human rights. The invitation for the United States to grant assurances to prevent an appeal also is troubling.

There are dire human stakes to Assange’s case. But his case is ultimately bigger than just one person. Global press freedom rights are at stake. For those who do not wish to live in a world where journalists can be whisked across borders so that the governments whose crimes they exposed can put them on trial, the situation could not be more urgent.