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Why has Julian Assange lost in the High Court, where Lauri Love won, and what could this mean for Journalism?

This article is not about Julian Assange as a person, nor about his political or social attitudes, nor previous criminal allegations. Rather this article is about the consequences of US imperialism and the future of any journalism that intends to hold the decreasingly hegemonic superpower of the United States to account for crimes so vast that one can scarcely keep track of even just those that it has not managed to conceal.

There remains little good will within the mainstream press for Assange; this is partly the fault of the man himself, but this attitude has led to matters being framed in such a way that is ultimately useful for US strategic objectives. Thus it is that many in the press are acting against their own collective interests, and that of the public at large, by failing to cover the ongoing legal proceedings, much less explaining their implications. And so it is increasingly necessary to address these implications – and not over one man whose fate hangs in the balance, but for the billions of others whose fate will always depend on how much they are permitted to learn about the immense crimes their rulers have fought so hard to conceal lest their own fates end with the guillotine. 

The Assange extradition case has been a depressing spectacle; this is especially true for someone like myself who was Lauri Love’s partner when he successfully fought off a similar extradition attempt by the Yanks. While Assange was diagnosed with the same condition as Lauri was, which in the latter case led to the court ruling that he could not be humanely remanded to the US federal prison system where conditions are shockingly inhumane even for those without mental health problems (and have likely grown worse since), at the current stage of proceedings, it has been ruled that Assange can be extradited due to the UK courts accepting ‘assurances’ by the US that he won’t be put in specific isolation torture chambers, unless he gives them (unspecified) reason to. 

Assange was indicted in the US on 18 counts in the first superseding indictment, from May 2019, including espionage for ‘obtaining’ and ‘communicating’ the Iraq and Afghan War Logs and Diplomatic Cables. Within the indictment, it is acknowledged that the ‘crime’ happened ‘outside any particular state or district of the US’, neither this, nor Assange’s lack of US nationality seem to affect the applicability of the Espionage Act; the law states that, for these purposes, the ‘crime’ happened where its effects ‘were intentionally felt’; if your journalism affects the US, that’s where your ‘crime’ was committed. All of the counts are in connection with the leaks sent to Wikileaks by Chelsea Manning, which detail war crimes and corruption. There was a second superseding indictment issued in June 2020, after the extradition hearing had started  in Feb, forcing the process to start all over again when the hearings restarted in Sept 2020, which is very irregular. These relate to Assange helping Edward Snowdon ‘evade arrest’. 

The ruling in the High Court overturns the Magistrates Court, where District Judge Vanessa Baraitser found that he should not be extradited following the precedent set by Love using section 91; that it would be ‘unjust or oppressive’ within the context of the US prison system. This followed an acceptance of the evidence given by Lauri’s legal team as to his mental health and autism. How the court process works is that all extradition cases go to Westminster Magistrates Court, which is the first instance where the court hears and rules on the evidence, and what they find is accepted as established. Appeals, therefore, are not on finding of ‘fact’, but rather on points of law. Therefore, in the Magistrates Court, there was an inversion of Lauri Love’s extradition hearing, where the finding of facts were predominantly found in his favour; it was accepted that he was very ill and would try to take his life, but the magistrate ruled against him regardless and we were able to appeal to the High Court but with the facts established in our favour. 

Assange’s District Judge ruled that the question as to whether extraction should be barred on the grounds that the charges were politically motivated was not for her court to decide because the Extradition treaty had not been incorporated into UK law, and therefore it is ‘outside the purview of the court’. Any rights a person has must be given by statue, not treaty. Furthermore, when the Extradition Act was made law in 2003, parliament removed the previous ‘political offences bar’. As a result of this determination, the judge did not find it necessary to examine the claims as to whether this was a political offence. There remains the weaker ‘political opinions’ bar, which the defence used to argue that espionage is by definition a political offence regardless of whether Assange was being pursued for political reasons, but this was rejected. 

For an extradition to be successful, there has to be an equivalent crime in the host country, and Assange’s defence argued that Assange was acting as a legitimate journalist, in seeking and aiding the leaks, and that the leaks showed ‘serious criminal activity’ and their release was in the public interest. The judge found that Assange’s actions were equivalent to aiding and abetting and conspiring with Chelsea Manning and others, and that they went beyond  journalism. 

The judge also ruled on the publishing of the leaks, which is argued damaged security services and put informants and agents at risk, judges being wont to take security services’ word. She argued that the defence have not established a ‘right to truth’ and fobbed off having to examine any ‘public interest defence’ by saying that is ‘to be dealt with at trial rather than in extradition proceedings.’ In any case, ‘a “public interest” defence is not available under the OSA [Official Secrets Act] 1989’. The judge did not find that there was any evidence that there would be bias against Assange or that there should be concerns with the plea bargaining system of the US, where only 3% of defendants get a trial

Evidence was given of the extent of the solitary confinement that he would likely be subjected to, especially as he would probably be put on Special Administrative Measures (SAMs). The judge found that ‘in these harsh conditions’ ‘the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America.’ The District Judge therefore ruled extraction should not happen. 

In the High Court, on December 10, 2021,  Chief Justice Burnett of Maldon and Justice Holroyde ruled that the magistrate should have given the US the opportunity to offer assurances when she presented them her first draft, and that the assurances are not inadmissible even though they were given after the hearing in the magistrates. The judges accept the assurances of the US; that Assange would not be put in SAMs, that he would be able to serve his sentence in Australia, after conviction, if he applies to do so and if both countries say yes, and he will be given appropriate mental health care. They rejected the evidence that assurances had previously been breached and determined the assurances had been given in good faith.

The problem with assurances is that when these promises are inevitably broken, there is no recourse, and past cases of this trust given in vain are not instructive to future hearings. In Assange’s case, this was compounded by the fact that these assurances were given after they had already lost in the magistrates, presumably to preempt the appeal. The other problem is they do not fall under the usual category of evidence; they are a ‘solemn diplomatic undertaking’ that cannot be challenged in court.   

Another problem is that they are not improvements to begin with. You don’t have to be an anti-carceral to see that there would be no ‘assurances’ that would make a US prison anything other than a potential life time torture sentence. The structural insificancy of any assurances and their own disregard for even them, meant that their giving assurances is like a sick joke. 

Another change in the extradition procedure since Gary McKinnon, which was intended to speed the process, was that there is no longer an automatic right of appeal. Appealing to the High Court on a point of law is basically a given; the fact that such a consequential verdict can even be given in the lowest court, is another incongruity of extradition hearings. However, appeal to the Supreme Court is not so assured. The US were denied this right in Lauri’s case, their even asking to appeal had been discouraged by their UK legal team. Likewise, Assange has been denied the right to appeal to the Supreme Court. As in the High Court, appeals are only allowed on a point of law, and for the Supreme Court, it must be one that is seen as a consequential point to clarify; they are presented cases and choose which they will take. 

In Assange’s case, the point of law which needed clarification was whether the ‘assurances’ given by the US could stand, considering they had been presented at a late stage, and also to challenge the status of them, as unquestionable proclamations. The Supreme did not agree that these were points that needed clarification. 

Now that the Supreme Court is not going to hear Assange’s case it was returned to the Magistrates Court on 20 April 2022 with an instruction to approve it, they then have to send it to the Home Secretary; the bastion of human rights that is Priti Patel, and his legal team will make (completely pointless) submissions to her. 

After the Home Security’s response, Assange will have the option of a cross-appeal to the High Court on the findings of fact that he lost on, this right to appeal would not be automatic. If this were successful, this would make a more interesting battle-ground. Lauri had to fight his extradition attempt on mental health grounds, which, although entirely legitimate, were, for us, not the point at all. No one should be extradited to the US for allegedly engaging in a political protest against their judicial system; he was alleged to be a part of Anon #OpLastResort which defaced some government websites in retaliation for Aaron Swartz being driven to suicide by the same ‘judicial system’ that came after him (the US being a great promoter of irony). Likewise, whatever Assange’s faults may be, the US is attempting to prosecute him for what he did right. That the country whose war crimes he publicised, in the public interest, is now able to attempt to extradite him for this very act, is obviously political and has terrible implications for investigative journalism. Until this is resolved either way, he will remain in Belmarsh, where he has been since April 2019. 

The US is trying to extradite Assange based on charges of espionage, in doing so they are furthering their attempts to globalise their judicial reach. An Australian, publishing in Europe, he should not be subject to the US’s espionage act; jurisdiction should not be established by the fact that his journalism ‘caused harm to the interests of the US’, as the magistrate ambiguously put it. This is not only going to create a precedent that will affect any journalist working with leaked US documents, but it will have a self-censoring effect on what is reported on. This is going to mean future war crimes will go unreported, and this will have a negative feedback loop, eliminating any checks war reporting may have had on US aggression. 

Another element of this case is not just the inherently political nature of the extradition, but of the ongoing political interference and implications of it. Apart from the Iraq and Afghan war logs and other, more high profile releases, Wikileaks has released documents on the working of private security contractors, such as Stratfor. In emails, they were revealed to conspire against Assange, to ”move him from country to country to face various charges for the next 25 years” and ”[bankrupt] the asshole first … ruin his life. Give him 7-12 years for conspiracy”.

This extradition and everything associated with it must be seen in the context of a global military and security cabal that, having suddenly found itself challenged by the transparency movement over ten years ago, now aims to ensure that anyone inclined to help revive this same movement and reveal similar mass crimes will first have to make peace with prospect of spending the rest of their lives in solitary confinement in a US prison cell.

Sylvia Mann

Image: Gun camera footage of the airstrike of 12 July 2007 in Baghdad, showing the deaths of journalists Namir Noor-Eldeen and Saeed Chmagh by a US helicopter.

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