The day was 20 April, the year 2022. It featured a hearing at Westminster Magistrates Court, one of crude inevitability. Julian Assange, beamed in via videolink from Belmarsh Prison, his carceral home for three years, heard the news that he would be extradited to the United States to face eighteen charges, seventeen based on the US Espionage Act of 1917 and one on a charge of computer intrusion. That it has reached this state of affairs, with the complicity and backing of the legal and political establishments of several countries, is a flagrant admission that liberal democracies will, when needed, punish publishers and whistleblowers who muddy the waters of state.
Since being evicted from the Ecuadorian embassy in London in April 2019 to howls of acclaim from corporate media outlets, Assange has been jailed in the United Kingdom’s most secure, padlocked security system, one reserved for the most dangerous of convicts. Chief Magistrate Senior District Judge Paul Goldspring was never going to rock the judicial boat in declaring that he was ‘duty bound’ to send the case to the security-conscious UK Home Secretary Priti Patel, though he did inform Assange that an appeal to the High Court could be made in the event of extradition being approved prior to the issuing of the order.
The April decision seemed a cruel turn for the books, given the ruling by District Court Judge Vanessa Baraitser on 4 January 2021 that Assange would be at serious risk of suicide given the risk posed by Special Administrative Measures and the possibility that he would spend the rest of his life in the ADX Florence supermax facility. Accordingly, it was found that extraditing him would be oppressive within the meaning of the US–UK Extradition Treaty.
While the outcome favoured the defence, it was disturbing from the perspective of the free press and the workings of the Fourth Estate. Baraitser, in fact, accepted all the arguments from the prosecution claiming that Assange was not a journalist, and took a dim view of his activities in general. The judgment is replete with scathing remarks about the practices of WikiLeaks and the supposedly sharp and unforgivable practice of exposing the identities of informants.
The High Court appeal
The US Department of Justice, ever unrelenting, appealed to the High Court of England and Wales. It attacked the judge for her supposed carelessness in not making a special point of seeking reassurances about Assange’s welfare from the prosecutors. It sought to reassure the British judges that diplomatic assurances would have been given. Assange would be spared the legal asphyxiations caused by SAMs, and the dystopia of the supermax facility. Besides, his time in US detention would be medically catered for, thereby minimising the suicide risk. There would be no reason for him to take his own life, given the more pleasant surroundings and guarantees for his welfare.
An additional, supposedly sweetening assurance was added to the suite of promises: the Australian national would have the chance to apply to serve the post-trial and post-appeal phase of his sentence in the country of his birth. All such undertakings would naturally be subject to adjustment and modification by US authorities as they deemed fit. None were binding; all were susceptible to the discretion of Washington and the behaviour of the accused.
Assange’s legal team submitted in rebuttal that ‘The introduction of fresh “evidence” in support of an appeal against an adverse ruling, in order to repair holes identified in that ruling, is generally prohibited’. There were also ‘profound issues of natural justice’ where ‘assurances are introduced by the requesting state for the first time at the High Court stage’. The defence further questioned the ‘legality of a requirement on judges to call for reassurances rather than proceeding to order discharge’.
The shallow undertakings made by the US authorities were also based on the vital presumption that they would be honoured by a government whose officials have debated, at stages, the publisher’s possible poisoning and abduction. In the spring of 2017, the suggestion for a proposed assassination of an Australian subject on British soil made it to the front of the queue as a possible remedy in various CIA deliberations. Even US President Donald Trump put out feelers on the subject. While the idea ‘was viewed as unhinged and ridiculous’, according to a former senior CIA official, it lingered long enough for rough sketches to be drawn up contemplating the murder of Assange and the targeting of WikiLeaks members with access to the CIA’s Vault 7 trove, which the organisation had published.
The talk of assassination was also accompanied by a relentless surveillance operation of the Ecuadorian embassy in London, directed by US intelligence operatives through the auspices of a Spanish security company, UC Global. The alleged criminal conduct of UC Global is currently being investigated by the Spanish courts.
Along the way, US prosecutors even had time to use fabricated evidence in drafting their indictment, based on the feverish imaginings of former WikiLeaks volunteer, confidence trickster and convicted paedophile Sigurdur ‘Siggi’ Thordarson. Thordarson was particularly frank with the Icelandic outlet Stundin in confessing that much of what he had passed on to the FBI was an adventurous, self-serving concoction.
The indictment alleges that Assange, in early 2010 and while in contact with Chelsea Manning for reasons of obtaining ‘classified information […] met a 17-year-old in NATO Country-1 (“Teenager”), who provided [him] with data stolen from a bank’. The indictment goes on to state that Assange asked the ‘Teenager’ in question ‘to commit computer intrusions and steal additional information, including audio recordings of phone conversations between high-ranking officials of the government of NATO Country-1, including members of the Parliament of NATO Country-1’.
In his Stundin interview, Thordarson revealed that ‘Assange never asked him to hack or to access phone recordings of [Iceland’s] MPs’. Nor had he ‘received some files from a third party who claimed to have recorded MPs and had offered to share them with Assange without having any idea what they actually contained’. Thordarson never trawled through the files or verified whether they held audio recordings as claimed by the third party source. The allegation that Assange instructed him to access computers in order to find such recordings was also dismissed.
Almost none of this mattered in the High Court, or, it should be said, the main global media outlets. The Lord Chief Justice of England and Wales, Ian Burnett, and Lord Justice Timothy Holroyde, in their December 2021 decision, were only focused on the prosecutor’s efforts to demolish the suicide risk claim. They saw no reason to doubt the good faith of the US Department of Justice, refusing to ‘accept that the USA refrained for tactical reasons from offering assurances at an earlier stage, or acted in bad faith in choosing only to offer them at the appeal stage’. There was nothing suggesting that such assurances had been given other than in ‘good faith’. It followed that Assange’s suicide risk would, given the assurances, be minimised—he had, the judges reasoned, no reason to fear oppression, given the promise that he would be exempted from the application of SAMs or the gross privations of ADX Florence. In this most political of trials, the judicial bench seemed unmoved by the grave implications of state power, and the desperation of the US imperium in targeting the publishing of compromising classified information.
The Supreme Court appeal
In a short ruling on 24 January this year, Lord Burnett narrowed the scope of the Supreme Court appeal by Assange’s legal team, stating, ‘Assurances [over treatment] are at the heart of many extradition proceedings’. While the High Court had refused permission for an expansive appeal, a decision as to whether the case needed to be heard by the Supreme Court was ‘a matter appropriately for its decision’. Journalist Mohamed Elmaazi, who was present to cover the short proceeding, boiled down the issue to the following all-too-narrow point: ‘in what circumstances can an appellate court receive [diplomatic] assurances which were not before the court at first instance in extradition proceedings’. Immediately, the more forensically minded would have been troubled by this most conscious trimming of the case. Surely, the Assange case, a matter of politics and important publishing, is far more than a case on meaningless diplomatic assurances? It entailed, among other things, the importance of the First Amendment in the US Constitution, which gives pride of place to the functioning of a democracy.
Massimo Moratti of Amnesty International also noted that the High Court had ‘dodged its responsibility’ in refusing to permit an airing of all issues of public importance before the Supreme Court, stating, ‘The courts must ensure that people are not at risk of torture or other ill-treatment. This was at the heart of the two other issues the High Court has now effectively vetoed’. Rhetorically, he added: ‘If the question of torture and other ill-treatment is not of general public importance, what is?’
On 14 March, the Supreme Court, comprising Lord Reed, Lord Hodge and Lord Briggs, delivered the skimpiest of answers to the narrowest of questions. They gave no reasons. In the words of the Deputy Support Registrar, ‘The Court ordered that permission to appeal be refused because the application does not raise an arguable point of law’.
Appealing to Patel
As the defence team gathered the paperwork to convince the UK Home Secretary to reject the extradition request, various groups expressed their concerns. In April, an umbrella grouping of nineteen organisations dedicated to press freedom and free speech urged Patel, in reviewing the case, to appreciate that Assange was ‘highly likely’ to face isolation or solitary confinement in the US ‘despite the US government’s assurances, which would severely exacerbate the risk of suicide’. On 10 June, a letter from the group Doctors for Assange, comprising 300 doctors, psychiatrists and psychologists, noted that the Home Secretary’s ‘denial of the cruel, inhuman treatment inflicted by upon Assange was then, and is even more so now, irreconcilable with the reality of the situation’.
Defence submissions were duly submitted before the 18 May deadline. These were always going to be made with an undue sense of optimism, given the Home Secretary’s fondness for bolstering the national security state. Even as UK Prime Minister Boris Johnson faced a no-confidence vote in June this year from his own mutinous party, Patel’s National Security Bill passed its second reading in Parliament. The bill makes it an offence to obtain or disclose ‘protected information’, which includes ‘any information … which either is, or could reasonably be expected to be, subject to any type of restrictions of access for protecting the safety and interests of the UK’. In a dutiful tribute to the US Espionage Act of 1917, the proposed bill states that an offence is committed when a person ‘obtains, copies, records or retains protected information, or discloses or provides access to protected information’ for a purpose ‘that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom’ and if ‘the foreign power condition is met’. The requirement there is that the act is ‘carried out for or on behalf of a foreign power’, including instances where ‘an indirect relationship’ exists.
Given such circumstances, it was too much to expect an epiphanous conversion on the part of the Home Secretary. The wheels of injustice were to continue grinding. ‘Under the Extradition Act 2003,’ a nameless spokesman for the Home Office stated on 17 June, ‘the Secretary of State must sign an extradition order if there are no grounds to prohibit the order being made. Extradition requests are only sent to the Home Secretary once a judge decides it can proceed after considering various aspects of the case’.
It seemed that overt politicisation, bad faith, and flimsy reassurances from the US Department Justice on how Assange will be detained were insufficient grounds to bar extradition. But the cue came from the courts themselves. ‘In this case’, went the words of the Home Office spokesperson, ‘the UK courts have not found that it would be oppressive, unjust or an abuse of process to extradite Mr Assange’.
The co-chairs of the Courage Foundation’s Assange Defense Committee, Noam Chomsky, Daniel Ellsberg and Alice Walker, were shaken. ‘It is a sad day for western democracy. The UK’s decision to extradite Julian Assange to the nation that plotted to assassinate him—the nation that wants to imprison him for 175 years for publishing truthful information in the public interest—is an abomination.’ The UK government had also ‘shown its complicity in this farce, by agreeing to extradite a foreigner based on politically motivated charges that collapse under the slightest scrutiny’.
Circumventing the First Amendment
Should Assange find himself shackled in the less than salubrious surrounds of the US carceral system, he will face one of the country’s most vicious statutes. The Espionage Act of 1917, also known as 18 USC 793, has worried the US legal profession for decades. It was, according to Charles P. Pierce, ‘the immortal gift of that half-nutty professor, Woodrow Wilson, and his truly awful attorney general, A. Mitchell Palmer’. Conceived in the heat of the First World War by the Wilson administration, the act was a product of disdain in the face of the First Amendment’s solemn words that ‘Congress shall make no law … abridging the freedom of speech, or of the press’. As law academic Stephen Vladeck describes it, the law ‘draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defence information that by that point is already in the public domain’.
The noxious statute criminalises the receipt, dissemination, and publication of national security information. It attacks the very foundations of the Fourth Estate’s pursuit of accountability and subverts the protections of the free press amendment in the US constitution. It invalidates the role of motive and purpose behind publishing or distributing information. Were this effort against a publisher and non-US citizen to be successful—and here, the British justices seem willing to ensure that it is—the United States will be able to globally target any outlet or journalist for receiving and publishing dirty classified material using this archaic, barbaric law.
Then, as now with Assange, there were figures that had cottoned on to the mad shift in Wilson’s policy. In October 1918, Wisconsin Senator Robert LaFollette rose to proclaim that ‘Today and for weeks past honest and law-abiding citizens of this country are being terrorized and outraged in their rights by those sworn to uphold the laws ad protect the rights of the people’. The senator described before his colleagues a state of wild and uncontrollable policing. Unlawful arrests had been perpetrated; people were thrown into jail and ‘held incommunicado for days, only to be eventually discharged without even having been taken to court, because they have committed no crime’.
The Espionage Act was not used sparingly, becoming a weapon of choice to target efforts to obstruct the war effort. Elizabeth Baer and Charles Schenck were some of the first notable targets, accused of mailing anti-war flyers to potential conscripts urging them to peacefully refuse to comply. On appeal to the Supreme Court, the First Amendment was shorn in a palpable hit against civil liberties. In the words of Justice Oliver Wendell Holmes, ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic’. Rather grimly, the judges made an all-too-willing concession to the urges of the warring state: ‘When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right’.
Other socialist activists of the form and determination of Kate Richards O’Hare also fell foul of the law, being sentenced to five years for violating its provisions. Socialist party members C. E. Ruthenberg, A. Wagenknecht and Charles Baker also endured prison terms for aiding and abetting those failing to register for the draft.
One of the most notorious victims of the Espionage Act was the socialist Eugene Debs, who found himself in prison as a result, having given a public speech inciting his audience to interfere with military recruitment and referring to the fate of fellow socialist activists. His assessment of the situation was appropriately brave: ‘I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets’.
On appeal, the US Supreme Court, in a unanimous opinion delivered by the unsympathetic Justice Holmes, affirmed the harsh line. Debs’s sympathy for individuals opposing the draft and interference with the recruitment process could be punished. The speech, even if it did mention socialism interspersed with a range of other observations, was ‘not protected by reason of its being part of a general program and expressions of a general and conscientious belief’.
Despite the scandalously complicit US media stable, who have, from The Wall Street Journal to CNN, been consistently hostile to the Australian publisher, Assange can count on a sprinkling of support. House Resolution 1175, sponsored by then Democrat House Representative Tulsi Gabbard, expressed ‘the sense of the House of Representatives that newsgathering activities are protected under the First Amendment, and that the United States should drop all charges against and attempts to extradite Julian Assange’. On the Republican side, former US Vice Presidential candidate Sarah Palin has also had a change of heart: ‘I made a mistake some years ago, not supporting Julian Assange—thinking that he was a bad guy’. Since then, she had ‘learned a lot’: ‘He deserves a pardon’.
A healthy phalanx of civil society groups is also urging US Attorney General Merrick Garland to stop the prosecution. On 15 October 2021 last year, Garland received a letter signed by 25 organisations including the ACLU, PEN America and Human Rights Watch, raising the US intelligence efforts against Assange as imperilling the case: ‘The Yahoo News story only heightens our concerns about the motivations behind this prosecution and about the dangerous precedent that is being set’. As the joint signatories had stated in a previous letter in February, ‘News organizations frequently and necessarily publish classified information in order to inform the public of matters of profound significance’.
The Australian angle
What then, are the options for Assange? One—dare we dream—is that the new Australian Labor government will push for an end to this dangerous, Kafkaesque farce. Initially, there seemed to be some movement. After having a few lunches with Australia’s then opposition leader, Anthony Albanese, Assange’s father John Shipton felt reason to be confident that the future prime minister would be willing to aid his son. In December 2019, before a gathering at the Chifley Research Centre, Albanese also referred to Assange as a journalist, accepting that such figures should not be prosecuted for ‘doing their job’. In December 2021, he also expressed the view that the ‘ongoing pursuit of Mr Assange’ served no evident ‘purpose’: ‘enough is enough’. To this can be added a cross-party committee of eclectic members who have insisted that Assange be, if not released, then treated more fairly.
That said, prior to winning office, the Labor opposition was hardly making disruptive ripples on the subject. ‘As an Australian, he is entitled to consular assistance’, came the anaemic remark from Senator Penny Wong as opposition spokesperson for foreign affairs in April. ‘We also expect the government to keep seeking assurances from both the UK and US that he’s treated fairly and humanely … Consular matters are regularly raised with counterparts, they are regularly raised and this one would be no different.’
Within the new government, there are Labor members who insist that Assange be freed. Julian Hill MP is one, convinced that Albanese, as Australia’s new Labor prime minister, would be a ‘man of integrity’ and be true to his ‘values’. Within his own party, there were members ‘who have had an active involvement in the Assange group based on these critical principles—press freedom and fighting against the chilling effect on the media that this persecution would have—and would hope that our government could achieve an outcome’.
Stuart Rees, founder of the Sydney Peace Foundation, senses a new form of politics ‘in the air’. Citing Archbishop Desmond Tutu’s remarks that there could be no future without generosity and forgiveness, he sees any intervention to free Assange as ‘a next step towards recovery of national self-respect’. The only thing for Albanese to do is to get on the phone to Boris Johnson to cancel the extradition.
Despite the changing of the guard in Canberra, it should not be forgotten that it was a Labor government, led by Julia Gilliard, who accused Assange of illegality in publishing US State Department cables in 2010. Gillard, impetuously and inaccurately, tried to impress her US counterparts by tarring and feathering WikiLeaks for committing offences she could not define, let alone identify. ‘Let’s not try and put any glosses over this’, she stated in December that year. ‘It would not happen, information would not be on WikiLeaks if there had not been an illegal act undertaken.’
All zealous and afire with premature adjudication, Gillard tasked the Australian Federal Police to investigate the matter, hoping that it would ‘provide the government with some advice about potential criminal conduct of the individual involved’. The priority here was identifying any Australian laws that might have been broken. Despite a crippling vagueness to the whole proceeding, she insisted on some unclear ‘common sense test about the gross irresponsibility of this conduct’. Using such reasoning, abuses of power by a state ought never to be revealed in the press or made available for public consumption.
Gillard’s conduct failed to impress, even at the time. Opposition legal affairs spokesman Senator George Brandis could find no relevant law, either Australian or US, that might have been breached in the publication of US cables. Liberty Victoria president Spencer Zifcak was ‘astonished’ that a lawyer of presumed competence could have uttered such remarks: ‘There is no charge, there is no trial, there is no properly constituted court, and yet the Prime Minister deems it appropriate to say that Mr Assange has committed a criminal offence’.
Within less than a fortnight of Gillard’s request, the AFP, in concluding its investigation, informed Attorney-General Robert McClelland that ‘given the documents published to date are classified by the United States, the primary jurisdiction for any further investigation into the matter remains the United States’. After evaluating the material concerned, the federal police had failed to establish ‘the existence of any criminal offences where Australia would have jurisdiction’.
How the publisher’s fate is handled will be revealing of the new government’s attitude to traditional alliances. Albanese, when asked as prime minister how he would approach the Assange case, seemed to show less candour than he had as an opposition politician, saying, ‘My position is that not all foreign affairs is best done with the loudhailer’. Now more embedded than ever in the US security framework, crowned by the AUKUS alliance, the length Australian politicians and officials will go to rock the boat of cordial understanding on the issue of Assange is unlikely to be extensive. Albanese may prefer to put the loudhailer aside, but the prospects of seeming supine and looking ineffectual are brutally real. Assange, if he finds himself crossing the Atlantic, will face captors who have, at stages, wished to abduct and murder him. The strength of the plea from Assange’s wife, Stella, is irrefutable: don’t extradite a man ‘to a country that conspired to murder him’.