Julian Assange Granted Right to Challenge U.S. Extradition Request

On Monday, the U.K. High Court granted Julian Assange permission to appeal his extradition order, on the grounds that the United States has failed to assure the court that Assange’s right to freedom of expression would be protected if he were forced to stand trial in the U.S. 

The surprising ruling was a major victory for Assange and the cause of press freedom. It is the first time Assange has been given a real chance to argue that the indictment under the Espionage Act of 1917 and related charges violates his rights under Article 10 of the European Convention on Human Rights, which provides that “Everyone has the right to free expression,” including “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The parties have been given until May 24 to submit a proposed outline of the next steps in the appeal. No further hearing date has been set. Assange remains incarcerated in the infamous Belmarsh Prison in London, where he has been held for over five years, as his health deteriorates. His lawyers may now renew their efforts to gain his release pending appeal.

The two-member panel of the High Court, Victoria Sharp and Jeremy Johnson, granted Assange leave to appeal on two of the grounds he had raised: whether the indictment violated his rights to freedom of expression under Article 10, and whether the indictment violated the extradition treaty between the U.S. and the U.K. in that Assange as a non-U.S. citizen would be prejudiced at trial by not being afforded the same First Amendment rights as a U.S. citizen.

In March, the High Court panel dismissed out of hand six of the nine grounds Assange had raised. As to the remaining three grounds, the panel ruled that Assange would be denied an appeal if the U.S. gave “satisfactory assurances” that if he were extradited his First Amendment rights would be protected, he would not be prejudiced by reason of his nationality to assert those rights and if convicted, he would not face the death penalty. In April, the U.S. unequivocally assured the High Court that a “sentence of death will neither be sought nor imposed on Assange.” But when it came to the First Amendment, the U.S. “assurance” was hardly unequivocal. The U.S. stated that 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 to 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.”

The loopholes in this “assurance” were obvious and in a rare show of judicial independence on Monday the High Court refused to defer to the U.S.

Edward Fitzgerald KC began the proceedings on behalf of Assange by announcing that the defense accepts the U.S. assurance regarding the death penalty, because it is unequivocal and would be binding on U.S. courts. But as to the assurance regarding the First Amendment, Fitzgerald maintained it offers no guarantee whatsoever. The assurance “does not promise that the applicant can rely on the First Amendment. Merely that he can raise and seek to rely on it.”

Fitzgerald pointed out that at the original extradition hearing, Gordon Kromberg, an assistant U.S. attorney, testified that “concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protection under the First Amendment, at least as it concerns national defense information.”

Fitzgerald noted that in March the High Court made an express finding that “If such an argument were to succeed, it would (at least arguably) cause the applicant prejudice on the grounds of his non-U.S citizenship (and hence, on the grounds of his nationality).” There is a wide range of cases in which U.S. prosecutors have given clear, express and unequivocal assurances when they want to. “We have nothing of that sort here,” Fitzgerald argued. “All we have is ‘he may raise and seek to rely on’.” 

“The U.S. states that the so-called assurance is adequate because the judges will take ‘solemn notice’ of it,” Fitzgerald observed. “But the U.S. accepts that the assurance ‘cannot bind the court.’ ‘Taking solemn notice’ of an assurance that was expressly stated not to bind the courts cannot operate as a guarantee that the court will apply U.S. law in a way that permits the Applicant to rely on the First Amendment, despite his foreign citizenship.”

James Lewis KC for the prosecution refused to back away from Kromberg’s claim that U.S. could argue that “foreign nationals are not entitled to protection under the First Amendment, at least as it concerns national defense information.” In fact, Lewis went even further in an official statement that should terrify U.S. journalists. “No one, neither U.S. citizens nor foreign citizens, are entitled to rely on the First Amendment in relation to publication of illegally obtained national defense information” that poses a threat to national security. Lewis cited the “giving the names of innocent sources,” but there is no evidence Assange did so. In fact, U.S. officials have testified that they know of no person who was put at risk by the WikiLeaks revelations.

In fact, the free press rights of all journalists — including U.S. journalists — are put at risk by Lewis’s statement. To confront the High Court’s concerns that Assange, a non-U.S. citizen, would be prejudiced at trial by not being afforded the First Amendment rights of U.S. citizens, Lewis’s audacious response was simple: There is no prejudice because U.S. citizens don’t have First Amendment rights in this context either. 

The High Court didn’t buy the U.S. “assurances” or the arguments of the prosecution. After a 20-minute recess, the panel returned to the courtroom and announced its ruling.

Meanwhile, there are moves afoot to convince the Biden administration to drop the prosecution of Assange. “Last month, Biden said he was considering whether to dismiss the charges against Julian Assange,” Marjorie Cohn, emerita professor of law at Thomas Jefferson School of Law and dean of the People’s Academy of International Law, told Truthdig. “He should affirm the Obama administration’s conclusion that prosecution of Assange would violate the First Amendment and the call by The New York Times and other media outlets to drop the Espionage Act charges.”

The Assange proceedings reveal that, unlike the American legal system, where the Constitution as interpreted by the Supreme Court is the last word, the U.K. is bound by a higher law, the European Convention on Human Rights, enforced by the European Court of Human Rights, which sits in Strasbourg, France. In deciding whether to extradite Assange, the U.K. courts must ensure that their ultimate ruling conforms to the Convention. If the U.K. courts lose their courage and eventually grant extradition, Assange’s lawyers have every intention of taking his case to the ECHR to vindicate his rights to freedom of expression. 

But for Assange, his wife Stella, and anyone who cares about preserving a free and unfettered press, May 20 was a good day.