Above photo: Scene outside the Royal Courts of Justice on Day One of Julian Assange hearing Tuesday. Joe Lauria.
Julian Assange’s lawyers on Tuesday argued before the High Court about why the imprisoned publisher must be allowed to appeal against his extradition order.
On Day One of Julian Assange’s attempt to appeal Britain’s order to extradite him to the United States, his lawyers laid out a timeline that exposed U.S. motives to destroy the journalist who revealed their high-level state crimes.
Before two High Court judges in the cramped, wood-paneled Courtroom 5 at the Royal Courts of Justice, Assange’s lawyers argued on Tuesday that two judges had seriously erred in the case on a number of grounds necessitating an appeal of the home secretary’s decision to extradite Assange to the United States.
High to the left of the court, next to oak shelves with neat rows of law books, was an empty iron cage. The court said it had invited Assange to either attend in person or via video link from Belmarsh Prison, where he has been locked up on remand for nearly five years. But Assange said he was too ill take part in any capacity, his lawyers confirmed.
Vanessa Baraitser, the district judge who presided over Assange’s 2020 extradition hearing, and Jonathan Swift, a High Court judge, came in for heavy criticism from Assange’s lawyers. Baraitser in January 2021 ordered Assange released on health grounds.
But she refused him bail while the U.S. appealed. On the basis of assurances that it would not mistreat Assange in the United States, the High Court reversed Baraitser’s decision. The U.K. Supreme Court then refused to take Assange’s challenge of the legality of these assurance and the home secretary signed the extradition order.
Assange’s last avenue of appeal is of the home secretary’s order as well as Baraitser’s 2021 decision, in which, on every point of law and many of fact, she sided with the United States. The application to pursue this appeal was rejected by a single High Court judge, Swift, last June.
He permitted his rejection of the application to itself be appealed. That two-day hearing began Tuesday before Justice Jeremy Johnson and Dame Victoria Sharp.
The Timeline
Assange lawyer Mark Summers made a forceful argument that the United States in essence is treating Assange no differently than any authoritarian regime would deal with a dissident journalist who revealed its secret crimes.
“There was evidence before the district judge that this prosecution was motivated to punish and inhibit the exposure of American state-level crimes,” Summers told the court. “There was unchallenged evidence” during Baraitser’s 2020 extradition hearing “of crimes that sit at the apex of criminality,” he said.
He said there was a direct nexus between Assange’s work to expose U.S. crimes and the U.S. pursuing him. “This is a prosecution for those disclosures,” he said. “There is a straight-line correlation between those disclosures and the prosecution, but the district judge (Baraitser) addressed none of this and neither did Swift.”
Summers then sketched out a timeline of events showing successive stages of motivation for the United States to go after Assange. “There was compelling circumstantial evidence why the U.S. brought this case,” he said.
First, he said, there was no prosecution of Assange (despite the Obama administration empaneling a grand jury) until 2016, when the International Criminal Court announced it would look into possible U.S. crimes in Afghanistan, following Assange’s disclosures. The U.S. then denounced him as a political actor.
Summers said “that morphed into plans to kill or rendition Assange” from the Ecuadorian embassy, where he had asylum, following the Vault 7 release of C.I.A. spying tools in 2017.
The then new C.I.A. Director Mike Pompeo, in his first public appearance in that position, denounced WikiLeaks as a hostile, non-state intelligence service, a carefully chosen legal term, Summers said, that permitted taking covert action against a target without Congressional knowledge.
Because these plans to kill or rendition Assange, asked for by President Donald Trump, raised alarms with White House lawyers, a legal prosecution was pursued as a way to determine where to put Assange if he were renditioned to the U.S., Summers said.
“This prosecution only emerged because of that rendition plan,” he said. “And the prosecution that emerged is selective and it is persecution.” It was selective because even though other outlets, such as Freitag and cryptome.org,, had published the unredacted diplomatic cables first, Assange was the only one charged.
“This is not a government acting on good faith pursuing a legal” path, he said.
Summers said Baraitser never raised the question of why six years went by after WikiLeaks‘ publication of Iraq and Afghan war logs before Assange was prosecuted and never asked what had suddenly triggered the U.S. to act against him. Baraitser knew the ICC was going to investigate Assange’s Afghan exposures, Summers said.
“There was reasonable evidence to link the two, but the district judge didn’t mention it,” he said. She also ignored the plot to kill or rendition Assange, even though she had heard evidence about it in her court. “The district judge didn’t know that charges were brought [against Assange] to give sustenance to an illegal rendition plan,” he said.
A Political Offense
Summers said that Assange’s “exposure is a political act, a political opinion against state criminality.” And Assange lawyer Edward Fitzgerald called espionage, with which Assange is charged, a “pure political offense.” The issue is crucial to Assange’s defense because the U.S.-U.K. Extradition Treaty bars extraditions for political offenses.
However, the Extradition Act, Parliament’s implementing legislation of the Treaty, does not mention political offenses. Baraitser ruled that the Act and not the Treaty should take precedence.
Assange’s team has been arguing that he is wanted for a political crime and therefore the extradition should not proceed. They argued that the Act bars extradition for “political opinion,” which they equate with “political offense.”
A considerable amount of time in the five-hour hearing was thus spent by Assange’s lawyers making the point that Assange’s charges are political. Fitzgerald argued that Britain has extradition treaties with 158 nations and in all but two (Kuwait and the UAE), political offenses are barred.
Assange’s work was to influence and change U.S. policy, Fitzgerald said, therefore his work was political and he could not be extradited for his political views or opinions.
Informants!
Justices Johnson and Sharp appeared to be not extremely well-versed in the Assange case and seemed at times surprised by what they were hearing from Assange’s lawyers. But they had been prepared on the U.S. view of Assange allegedly harming U.S. informants.
What they didn’t know is that Assange had actually spent time redacting the names of U.S. informants from the Diplomatic Cables, while WikiLeaks‘ mainstream partners in 2010 did not.
Justice Johnson asked before lunch whether there were cases where someone had published the names of informants and were not prosecuted. After the break, Summers offered the example of Philip Agee, the ex-C.I.A. agent who revealed undercover agents’ names, some of whom were harmed, but he was never indicted for it.
Summers also mentioned The New York Times publishing names of informants in the Pentagon Papers. “The New York Times was never prosecuted,” Summers said. However, Richard Nixon indeed empaneled a grand jury in Boston to indict Times reporters but after it was revealed the government tapped whistleblower Daniel Ellsberg’s phone — and thus also the reporters’ — the case was dropped.
Despite their apparent unfamiliarity with the Assange case both judges seemed intrigued by its serious political, legal and press freedom issues. They are senior judges who might be less susceptible to political pressure.
The Death Penalty
The judges may also have been surprised to learn that under U.S. law and practice, (in this case with agreement from the British government), new charges could be added to Assange’s indictment after he would arrive in America. The Espionage Act, for instance, carries a provision for the death penalty if committed during wartime.
Britain does not have the death penalty and cannot extradite someone who could face capital punishment. Though the U.S. could offer Britain diplomatic assurances that it would not seek the death penalty against Assange, so far it has refused.
Fitzgerald also seemed to shock the courtroom by speaking of instances in U.S. courts where someone convicted for one crime could at sentencing receive time for another offense he or she was never tried for.
He expressed concern that though Assange was never charged with the Vault 7 C.I.A. leak, he might still be sentenced for it. He also said that at sentencing the rules of admissibility could be discarded, for example to consider evidence that was obtained through surveillance.
First Amendment
The judges may have been surprised to hear that the U.S. prosecutor in Virginia has said he may deny Assange his First Amendment rights during trial on U.S. soil because he is not a U.S. citizen. Pompeo stated more categorically that Assange would be without First Amendment protection.
Stripping the right of free speech is a violation of Article 10 of the European Court of Human Rights, Assange’s lawyers argued.
What Strasbourg Would Do
Summers brought the court through a scenario in which the European Court of Human Rights had tried Chelsea Manning, instead of a U.S. military court. He said whistleblower protection laws in Europe had advanced to the point where he believed the court would have weighed the harm done by breaking a confidentiality agreement and the harm prevented by blowing the whistle.
He concluded that Manning would not have been convicted and said Assange would, in this scenario, be even easier to acquit because he never signed any confidentiality agreements.
This exercise may have been a message to the court: release Assange yourself before the European court embarrasses you by overturning your decision to extradite him.
The Overall Strategy Of Assange’s Lawyers Appeared To Be To Make It Obvious To These Judges That There Are Vast Grounds For Appeal As Well As Arguments To Toss The Case (Such As Evidence Of C.i.a. Spying On Assange’s Privileged Conversations With His Lawyers)
Forseeable
Assange’s lawyers also argued that Article 7 of the European Convention on Human Rights says someone must foresee that their behavior is a crime before he or she could be charged with it.
They said Assange could not have known that publishing his classified disclosures could have led to prosecution under the Espionage Act because no journalist or publisher had ever been charged under it for possession and publication of classified material. Therefore a violation of Article 7 should bar extradition, they say.
Assange was for years worried, however, that the U.S. would hunting for him. And there were two previous failed attempts by grand juries to prosecute journalists: The Chicago Tribune during the Second World War and The New York Times in the Pentagon Papers case, as discussed above.
All-Star Gallery
In the seven rows of seats behind the lawyers’ benches in Courtroom 5 were 16 members of the European Parliament, including Clare Daley and Mick Wallace of Ireland. Sevim Dadelen, a member of the German Bundestag, was in the courtroom along with Alan Rusbridger, the former Guardian editor. Jeremy Corbyn addressed the crowd of several hundred protestors outside the court.
The hearing continues on Wednesday with lawyers representing the United States presenting their arguments about why Assange should not be allowed to appeal.