Exposing War Crimes

The US war on WikiLeaks, its sources, and its founder is a long, sordid affair. It entered its current phase on April 11, 2019, when British police arrested Assange. The United States then unsealed a series of indictments against him and sought his extradition. Ultimately, Assange would be charged with seventeen counts under the Espionage Act and one count of conspiring to violate the Computer Fraud and Abuse Act. All of the charges stem from WikiLeaks’ receipt and publication of classified documents from whistleblower Chelsea Manning.

Assange’s attorneys argued that the United States was clearly seeking to extradite Assange for a political offense and that his extradition was barred under British law. In 2021, a British judge rejected these arguments. Nonetheless, the judge blocked Assange’s extradition to the United States due to the prison conditions he would likely face. The United States, represented by the UK government, appealed this decision. They also offered diplomatic assurances about Assange’s potential prison conditions. Amnesty International called the assurances “inherently unreliable.” But UK courts accepted the assurances, overturned the judge’s ruling, and denied Assange the right to appeal.

Assange’s attorneys then sought to appeal the parts of the original decision that were adverse to them. They presented nine separate grounds for appeal. At the heart of the defense’s legal arguments was the assertion that Assange was a journalist who published information about state criminality. Such actions were in the public interest. Prosecuting a journalist for his work exposing war crimes and abuses of power is a form of government retaliation that violates free expression rights.

The High Court rejected the overwhelming majority of these grounds, ruling that the bulk of charges against Assange dealt with ordinary crimes with no relationship to free expression rights. For the limited number of charges the High Court found touched on free expression rights, the High Court ruled there was not a significant public interest in the publications to prohibit Assange’s prosecutions. Prosecuting Assange for exposing war crimes therefore did not violate Assange’s right to free expression under Article 10 of the European Convention on Human Rights, which the court found to be similar to the US First Amendment.

In a particularly disturbing part of the decision, the High Court ruled Assange’s lawyers could not introduce additional evidence about the CIA plot to kill the journalist — not because they found such a plot inconceivable but because the High Court believes if Assange were extradited to the United States, the CIA would no longer have reason to assassinate him.

The decision was not a total defeat for Assange. The United States failed to provide an assurance not to seek the death penalty. Although Assange was not charged with an offense that carried the death penalty, his lawyers argued he could be. The court found these concerns to be persuasive and granted leave to appeal on this point.

Additionally, one of the prosecutors in the case, Gordon Kromberg, stated the United States might argue that as a foreigner Assange had no First Amendment rights. The UK High Court found that if the US government succeeded in this argument, Assange would face discrimination because of his nationality and be deprived of his right to free expression, in violation of Article 10 of the European Convention on Human Rights. As a result, Assange could also appeal.

The High Court gave the United States an avenue to avoid the appeal. If the United States offered assurances that they would not seek the death penalty against Assange, that Assange would not face discrimination due to his nationality, and that Assange could rely on the First Amendment, Assange would lose his right to appeal. The High Court was taking the ominous and highly unusual step of telegraphing to the United States what to say to extradite Assange.

During past phases of Assange’s extradition proceedings, UK courts maintained that US assurances had to be taken at face value and that the defense could not challenge them. This time, the UK High Court announced it would accept both a written challenge to the assurances and hold a hearing on whether they were sufficient.

The United States waited until the April 16 deadline to submit its assurances. The first assurance was a standard death penalty assurance, a routine diplomatic matter given that most of the world does not share the United States’ belief in the death penalty. The second assurance read:

ASSANGE will not be prejudiced by reason of his nationality with respect to which defenses he may seek to raise at trial and at sentencing. Specifically, if extradited, ASSANGE will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States. A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts.

First Amendment Rights

Going into the May 20 hearing, a sense of pessimism pervaded for Assange’s team. Given the judge’s dismal assessment of Assange’s rights, I felt certain that this was likely to be the end of the road for Assange’s case in the UK legal system. Everyone I spoke to who had followed the case closely, either as journalists, activists, or human rights advocates, also believed Assange’s prospects were bleak.

At the outset of the hearing, Assange’s defense announced they fully accepted the US assurance on the death penalty, but the remaining assurance was insufficient. The High Court had asked for an assurance that Assange could rely on the First Amendment. The United States instead said Assange could “seek to rely” on the First Amendment. The defense also noted that diplomatic assurances in extradition typically include promises to refrain from doing something, such as declining to seek the death penalty or require bail. In its assurance, the United States made no promises that the Department of Justice would not argue Assange lacked First Amendment rights on the basis of his nationality. As the defense told the judges, “Mr Kromberg has caused the concern and done nothing to allay it.”

Relying on the expert opinion of Paul Grimm, a former US federal judge, lawyers for Assange argued that even if prosecutors did not argue Assange lacked First Amendment rights due to his nationality, a court could independently make this ruling. They also relied on Grimm to argue that the First Amendment protects more than just publishing, it protects newsgathering. This seemed meant to counter the High Court’s previous finding that only a handful of charges had any relationship to free expression rights.

UK lawyers, representing the United States, pedantically lectured the court on the distinction between citizenship and nationality. Any deprivation of Assange’s First Amendment rights would be due not to his nationality, but his citizenship (i.e., an Australian-born US citizen could not be deprived of First Amendment rights, but any noncitizen may be). One of the UK government lawyers representing the United States stated Assange would not be “prejudiced for reason of his nationality, but because as a matter of law he is a foreigner operating on foreign soil.”

After roughly an hour and half of arguments, Assange’s lawyers and UK prosecutors representing the US government concluded their arguments. The judges hearing the case, Victoria Sharp and Jeremy Johnson, began whispering to each other. Part of their comments could be heard on a hot mic, but the only word I could make out was “discriminatory.” Sharp then announced the court would adjourn for ten minutes, then the judges would let us know “where we are.”

In the overspill room where most of the press was, there was confusion. As we discussed among ourselves what this could possibly mean, one journalist quipped, “Where we’re at? We’re at the Royal Courts of Justice.” When the judges had been gone more than twenty minutes, it became clear they were making a decision.

It would be nearly a half hour before the judges returned. Sharp announced that Assange was granted a full appeal on whether he would face discrimination as a foreign national or be denied free expression rights. Sharp denied an appeal on the issue of the death penalty, however, all parties had already agreed the assurance was sufficient.

The High Court had essentially told the United States what to say in order to prevail. And yet the United States couldn’t even muster that. The court had also tied the hands of the defense. And in spite of the seemingly insurmountable odds, they prevailed.

Assange’s Victory

Supporters of Assange began gathering outside the Royal Courts of Justice a full two hours before the hearing. When news of what had happened inside the courtroom reached the hundreds of protesters outside, there was clear jubilation.

Assange’s victory should be celebrated by all those who value press freedom. Assange, however, is not out of danger. The two judges ruled Assange a right to appeal, they did not rule in favor of the arguments. And the arguments Assange’s lawyers can raise are still extremely narrow.

The Assange extradition has been filled with twists and turns, which makes it impossible to predict what will happen next, made all the more confounding by the High Court’s seeming indifference to many of the fundamental press freedom and human rights issues at stake. The March ruling read very much like the High Court judges wanted to rubber stamp the persecution of a journalist, but the United States and UK lawyers blundered so badly as to make that impossible. Now those same judges have issued a stunning rebuke to the United States. Could judges who believe prosecuting Assange for his journalism does not violate his free expression rights block US extradition, given that the United States may not allow him First Amendment rights as a foreign national?

Uncertainty aside, Assange’s supporters are right to celebrate a rare legal victory. Assange’s defense will have another chance to fight his extradition. Anyone who cares about press freedom should be rooting for them to prevail.