WikiLeaks founder Julian Assange can appeal his extradition to the United States, a British court has said.
Two judges at the High Court in London today said Assange can officially challenge his extradition order from the United Kingdom in the long-running dispute over the leaking and publication of military secrets.
Following a two-hour hearing, at which Assange was not present due to health issues, the judges allowed Assange to appeal his extradition on freedom of speech and freedom of expression grounds. The decision, the latest in a years-long legal battle, follows a UK High Court ruling in May that asked the US government to provide more “assurances” about the conditions Assange would face if he was extradited. In that instance, the court said it required more convincing that Assange would have free speech protections, his Australian nationality would not prejudice him in any trial, and he would not later be sentenced to death.
The judges, Victoria Sharp and Jeremy Johnson, have now considered arguments from both sides on the three issues and decided to allow Assange to appeal the “assurances” about how his trial would be conducted and First Amendment grounds. (Assange’s team did not contest assurances from the US government that he would not be given the death penalty.)
The decision to grant an appeal, which will be seen as a partial win for Assange, means the long-running saga will likely extend over months to come.
Assange faces 18 charges in the US, all but one under the Espionage Act, for publishing classified information related to the US-led wars in Iraq and Afghanistan. A conviction under the act would require prosecutors to demonstrate that Assange not only obtained national defense information but released it with the intent to injure the United States—a major hurdle for US prosecutors in a case against an award-winning journalist.
Assange’s attorneys say he could face up to 175 years in prison, though US prosecutors have claimed publicly that they expect him to serve no more than five.
Prosecutors in the US allege that Assange, 52, overstepped his role as a journalist in online conversations with a source, Chelsea Manning, a former Army intelligence analyst, by allegedly offering to help the then-22-year-old private crack a hashed password that could have, hypothetically, furthered her illicit access to a classified Defense Department network.
Manning was arrested in 2010 on suspicion of having leaked purportedly classified footage of a US airstrike in Baghdad. The damning video, which came to be known as Collateral Murder, depicted a helicopter attack in which at least 12 civilians, including two Reuters journalists, were gunned down. (The Pentagon later assessed that the footage was not, in fact, classified.)
Manning, who spent more than a year and a half in pretrial confinement, confessed in 2013 to leaking more than 750,000 documents. A third of the cache were diplomatic cables that, while portrayed as highly damaging by the Obama administration, were in large part simply embarrassing for US diplomats, who wrote candidly about the behavior of foreign leaders in their reports back home.
Ultimately, Manning was convicted on six Espionage Act offenses and one computer hacking charge. Only 229 of the documents were held against her in court. She was acquitted of “aiding the enemy,” a charge that could have carried a life sentence. Her 35-year sentence was commuted by former President Barack Obama in 2017 in one of his final acts of office.
In 2019, Assange was forcibly removed from the Ecuadorian embassy in London where he’d lived under asylum for seven years and sentenced by a British court to 50 weeks in prison for skipping bail. He’s been held in Belmarsh prison ever since pending the completion of his extradition hearings, which were repeatedly delayed as a result of the Covid-19 pandemic.
A British court initially barred the US from extraditing Assange in 2021, citing mental health issues and an increased risk of suicide. That decision was overturned on appeal after US prosecutors offered assurances designed to ameliorate concerns about the harsh conditions inside US prisons, including the system’s frequent use of prolonged isolation, a practice comparable to torture and revealed by research to have deleterious if not irreversible effects on the mind.
The prosecutors were also made to agree not to subject Assange to the death penalty or to what the country calls “special administration measures,” the practice of wiretapping calls between prisoners and their lawyers to “prevent the disclosure of classified information.”
Prosecutors additionally agreed not to deny Assange, an Australian citizen, the opportunity to seek a First Amendment defense, though there is no guarantee he would succeed. (The Espionage Act does not differentiate between journalists and nonjournalists.) Speaking recently with the Associated Press, Stella Moris, Assange’s wife and the mother of his two children, said the US assurances were laden with “weasel words.”
WikiLeaks editor-in-chief Kristinn Hrafnsson told reporters this month that the question of whether Assange can defend himself by relying on his status as a journalist should be a simple “yes or no question.” However, US prosecutors have stated the “applicability” of the First Amendment is “exclusively within the purview of the US Courts.”
“The US simply cannot guarantee his safety and well-being as it has also failed to do for the hundreds of thousands of people currently imprisoned in the US,” said Julia Hall, Amnesty International’s expert on criminal justice in Europe.
Free press organizations in the US have warned that the prosecution of Assange would set a dangerous precedent and have a chilling effect on journalists who obtain classified information. The Assange case represents the first time that the Espionage Act has been used against a publisher of classified materials who was not himself involved in its theft. The US Supreme Court has long recognized the right of journalists to publish leaked materials even when they are criminally obtained by a source.
“The indictment is a mish mash of accusations, including the risk of penalizing any reporter who does more than sit back and passively wait for material to be leaked to them,” Alan Rusbridger, the former editor of The Guardian, said in 2019.
The Committee to Protect Journalists says the arguments laid out in the Assange indictment could establish “a legal pathway for the prosecution of journalists and severely weaken the First Amendment, which guarantees freedom of the press,” adding: “Journalists’ right to report on matters of public interest without fear of censorship or retribution could be harmed.”
