Julian Assange can be extradited to the US to face espionage and hacking charges, court rules

Diplomatic assurances

Giving the judgment, Lord Chief Justice Ian Duncan Burnett said the US had given diplomatic assurances over Assange’s treatment in the country in a diplomatic note on 5 February 2021.

“Assurances of this kind are solemn undertakings offered by one government to another,” he said.

The judge said he was satisfied that the assurances exclude the possibility of Assange being made subject to special administrative measures (SAMS) or held at the ADX facility – a maximum-security prison in Florence, Colorado.

The assurances applied either pre-trial or after any conviction, unless Assange “committed any act in future” which rendered him liable to detention in those conditions, he said.

The US also gave an undertaking that it would consent to an application by Assange to be transferred to Australia to serve his sentence, if convicted, and that he would receive “appropriate clinical and psychological treatment as recommended by a qualified treating physician” in a US prison.

The court found that district judge Baraitser should have notified the US of her provisional view that Assange should not be extradited before her verdict in January, to give it the opportunity to give assurances to the court.

The judge said the court had the power to receive and consider the assurances “notwithstanding” that they were offered after the district judge gave her decision not to extradite Assange.

The court directed the district judge to send the case to the secretary of state to make a final decision on extradition.

Espionage Act

The case represents the first time that the US Espionage Act 1917, originally enacted to prosecute spies during the First World War, has been used to bring charges against an individual for receiving and publishing classified information.

Assange has been charged in a US indictment with 17 counts under the Espionage Act for receiving and publishing classified government documents and one count under the Computer Fraud and Abuse Act.

The allegations centre on hundreds of thousands of documents leaked to WikiLeaks by former US Army intelligence analyst Chelsea Manning in 2010 and 2011.

They included the rules of engagement for the Iraq war and the “collateral murder” video which showed US soldiers laughing as they fired at unarmed civilians in Iraq.

US assurances made in good faith

The Lord Chief Justice of England and Wales and Lord Justice Holroyd found today that there was no merit in Assange’s criticisms of the US assurances over the way he would be treated in the US.

“The reality is that this court is being invited to reject the USA’s assurances either on the basis that they are not offered in good faith or that they are for some other reason not capable of being accepted at face value. This is a serious allegation,” they wrote in a 27-page judgment.

“The possibility that Australia may not be willing to receive a transfer cannot be a cause for criticism of the USA or a reason for regarding the assurances as inadequate,” they said.

Mark Summers QC argued in a two-day hearing in August that the US had breached diplomatic assurances following the extradition of Haroon Aswat, David Mendoza and Abu Hamza, but the judges rejected the arguments.

“There is no reason for assuming that the USA has not given the assurances in good faith,” they said.

The judges rejected arguments that Assange being extradited to the US would put him at risk of suicide.

The fact that he could be held in isolation or near isolation on restrictive custodial regimes, other than SAMS or detention in an ADX Supermax prison, was a bar to his extradition.

“It follows that we are satisfied that, if the assurances had been before the judge, she would have answered the relevant question differently,” they said.

Medical evidence admissible

The judges rejected one of the central arguments by the US that evidence given by Assange’s principle psychiatric expert should be found inadmissible or given very little weight.

Psychiatrist Michael Kopelman was the only expert witness to give evidence that Assange’s mental health conditions removed his ability to resist the impulse to commit suicide.

The US argued that Kopelman had seriously misled the court by failing to disclose Assange’s relationship with his fiancée in his initial report.

Judge Baraitser found in January that while Kopelman had failed to disclose details of Assange’s relationship, he nevertheless gave impartial evidence to the court.

Kopelman’s actions were an “understandable human response” to being asked to keep the relationship between Assange and Morris confidential, she found.

But James Lewis, representing the US, said Kopelman had signed an “untrue” statement stating that he had endeavoured to include anything in his report that might be adverse to his opinion.

The two High Court judges today said they could not agree with the district judge that Kopelman did not fail in his professional duty.

There were “substantial reasons for the judge to question the impartiality and reliability of Professor Kopelman’s opinion”, they wrote.

The judges found, however, that the district judge was entitled to find Kopelman’s evidence admissible, having heard all the evidence, having seen how he responded to cross-examination, and having explicitly recognised that aspects of his first report were misleading.

Vault 7 leak 

Assange’s defence lawyers told the court in August that the CIA had wanted revenge against Assange after the WikiLeaks founder published documents about the CIA’s surveillance tools, in what they describe as a politically motivated case.

WikiLeaks’ publication of the Vault 7 leak, which disclosed the CIA’s hacking capabilities, provoked a desire for blood and vengeance from the US intelligence community,

The court heard that US agents discussed plans to forcibly remove Assange from the Ecuadorian Embassy and had discussed the idea of poisoning him.

Details of the extent of the CIA’s operations against Assange were disclosed by former US intelligence and government officials in an investigation by Yahoo news.

Assange’s defence lawyers told the court that the CIA had wanted revenge against Assange after the WikiLeaks founder published documents about the CIA’s surveillance tools.

WikiLeaks’ publication of the Vault 7 leak, which disclosed the CIA’s hacking capabilities, provoked a desire for blood and vengeance from the US intelligence community, said Edward Fitzgerald QC, representing Assange.

The court heard that US agents discussed plans to forcibly remove Assange from the Ecuadorian Embassy and had discussed the idea of poisoning him.

An email sent by the owner of UC Global, which provided security services for the Ecuadorian Embassy instructed staff to pay “special attention” to Assange’s partner following a rumour that she had had a child with him.

US allegations

The US accuses Assange of “complicity in illegal acts” to obtain classified information and an alleged attempt to obtain classified information through computer hacking.

He is also accused of putting the lives of people at risk, including Afghans, Iraqis, journalists, religious leaders, human rights advocates and political dissidents, by publishing unredacted documents.

Assange has denied the charges and called witnesses who gave evidence disputing the allegations in a series of court hearings.

The WikiLeaks founder has been in custody in Belmarsh Prison since 11 April 2019 when he was arrested at the Ecuadorian Embassy.

Solicitors Birnberg Peirce, representing Assange, said in a statement that it would be seeking permission to appeal this decision to the Supreme Court within 14 days.

The law firm said that further appeals on other important questions, including questions of free speech and on the political motivation of the US extradition request, have yet to be considered by an appeals court.

“The fact that the US has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on”

Editor-in-chief of WikiLeaks, Kristinn Hrafnsson, said: “Julian’s life is once more under grave threat, and so is the right of journalists to publish material that governments and corporations find inconvenient.”

Amnesty International’s European director, Nils Muižnieks, said US diplomatic assurances that Assange would not be held in solitary confinement in a maximum security prison were “deeply flawed”.

“The fact that the US has reserved the right to change its mind at any time means that these assurances are not worth the paper they are written on,” he said.

Other groups said the decision would set a damaging precedent for journalists and press freedom.

Trevor Timm, executive director of the Freedom of the Press Foundation, said: “These proceedings, and today’s ruling, are a black mark on the history of press freedom.”

Rebecca Vincent, the director of international campaigns at Reporters Without Borders, said the ruling “marks a bleak moment for journalists and journalism around the world”.

“Julian Assange should be immediately released, and steps taken to ensure no journalist, publisher or source can ever be targeted in this way again,” she said.