ANALYSIS: UK High Court Demands US Assurance That Assange Will Not Be Executed

Key to the Wikileaks founder’s defence is whether US First Amendment rights extend to non-citizens.

WikiLeaks founder Julian Assange arrives at court in London on May 1, 2019. Daniel Leal-Olivas/AFP via Getty Images

Analysis

Julian Assange has been granted another reprieve after the High Court in London decided to seek assurances from U.S. prosecutors that he will not be charged with any offence if extradited, including treason.

Mr. Assange has spent 13 years fighting his extradition to the United States in the English courts.

U.S. prosecutors have until April 16 to provide assurances, and if they do not, the court will grant Mr. Assange leave to appeal the extradition on very limited grounds.

His hope now rests on convincing the court that there is a very real risk that he will not be able to advance a First Amendment (free speech) defence at a U.S. trial because he is a foreign national.

U.S. authorities have claimed Mr. Assange would not receive capital punishment but the judges disagreed, noting that “nothing in the existing assurance explicitly prevents the imposition of the death penalty.”

But if the United States guarantees Mr. Assange will not face the risk of execution, he has until April 30 to file further submissions in support of his appeal, and prosecutors must then respond by May 14. In the meantime, he will remain inside London’s high-security Belmarsh Prison, where he has spent the last five years.

Do US First Amendment Rights Extend to Non-Citizens?

Aside from the question of the death penalty, the two grounds accepted by the court are the risk that he might be prejudiced at trial “on grounds of nationality” and, as a consequence, the extradition would contravene the right to freedom of expression under article 10 of the European Convention on Human Rights (ECHR), which has been adopted into domestic British law.

The question of nationality arises because the prosecutor in the case, Assistant U.S. Attorney Gordon Kromberg, has stated that the United States may argue at trial that “foreign nationals are not entitled to protections under the First Amendment.”

This was reiterated by Mike Pompeo (then the director of the CIA, and at the time of the extradition request, the U.S. secretary of state), who asserted that Mr. Assange “has no First Amendment freedoms” because “he is not a U.S. citizen.”

Former U.S. Secretary of State Mike Pompeo in the briefing room at the State Department, on November 26, 2019 in Washington, DC. Mark Wilson/Getty Images

The court must decide whether extradition could result in a breach of Mr. Assange’s rights under the ECHR.

However, the court has made clear that it sees that as the only risk to those rights, noting that, “Depending on the circumstances, the prosecution of journalists for criminal conduct can be compatible with article 10 of the Convention.”

Assange’s Public Interest Defence on the Ropes

In another matter, Mr. Assange’s team tried to argue that it was in the public interest for the Wikileaks founder that the information he published was in the public interest.

Howver, the court noted that U.S. authorities had limited their prosecution to only material that revealed the names of human intelligence sources—an issue the court appeared to agree with.

“There is no strong public interest in the publication or revelation of the names; and strong countervailing interests in protecting them,” the court said. “The authorities show that the need to protect confidential human sources may be a weighty factor in the article 10 balance.”

The judges added that the Wikileaks founder “has not identified any public interest in disclosing the names of the covert human sources.

“[Mr Assange’s] publication of material which he alleges exposed [the United States] involvement in serious criminality may well raise strong public interest factors justifying a high level of protection. But [the United States] does not seek to prosecute the applicant in respect of those matters.”

And despite allowing Mr. Assange to argue at a future date that U.S. free speech laws would not protect him, the judgment concludes, “Nothing in the United States Constitution, including the First Amendment, says that the rights prescribed by the United States Constitution ... are available only to United States citizens and may not be invoked by non-citizens.”

5 Grounds of Appeal Refused

Mr. Assange submitted five other grounds of appeal, including that extradition should not be allowed because the prosecution was over “political opinion,” which is barred under the UK-U.S. Extradition treaty. Another was that he would not receive a fair trial in the United States.

These were all dismissed.

The court also dismissed an application to introduce what Mr. Assange’s legal team called “new evidence,” but which amounted to a statement by former Guardian editor Alan Rusbridger, drawing attention to a statement made by the Committee to Protect Journalists that warned the prosecution could set a harmful precedent and have a damaging impact on journalism more generally.

“With the greatest of respect to Mr. Rusbridger,” the judges said, “We do not consider that his statement amounts to fresh evidence.”

U.S. prosecutors say they want to charge Mr. Assange with 18 offences, all but one under the Espionage Act, over WikiLeaks’  release of confidential military records and diplomatic cables.

Outside the court, Mr. Assange’s wife Stella called the decision “astounding.”

“The Biden administration should not issue assurances, they should drop this shameful case that should never have been brought,” she said.

Julian Assange's wife, Stella, addresses protesters outside the High Court in London, on Oct. 27, 2021. Frank Augstein/AP Photo

But political considerations surfaced in the ruling, with the High Court also noting that, “Each country has different views of different crimes and how they should be punished.”

“Extradition is also a two-way process; to refuse extradition to a country may lead to that country not honouring an extradition request from the United Kingdom. Maintaining good extradition relationships and the honouring of international obligations in this regard ensures that countries do not become safe havens from justice.”