The High Court has granted WikiLeaks founder Julian Assange go away to appeal towards extradition to the US to face prices beneath US espionage and pc crime legal guidelines.
The court docket granted the 52-year-old go away to appeal after defence attorneys questioned US assurances that Assange wouldn’t face discrimination in a US trial due to his nationality.
The 52-year-old is charged with 17 counts beneath the US Espionage Act 1917 and one rely beneath the US Computer Fraud and Abuse Act over WikiLeaks’ 2010 publication of paperwork leaked by US Army whistleblower Chelsea Manning.
The listening to was attended by giant numbers of Assange supporters who amassed exterior London’s High Court with banners.
The determination got here after the High Court sought diplomatic assurances from the US authorities in March 2024 that Assange wouldn’t face the loss of life penalty if extradited and can be allowed to make use of the US First Amendment, which ensures free speech, in his defence.
Edward Fitzgerald KC, representing Assange, advised the court docket that he accepted that the US authorities had supplied “an unambiguous promise” to not cost Assange with a capital offence, which means that Assange was not in danger from the loss of life penalty.
But he advised the court docket that the US authorities had failed to provide correct assurances that Assange would have the ability to depend on the US First Amendment, which supplies rights to freedom of expression, as a part of his defence.
Assange, who’s an Australian citizen, can be discriminated towards within the US due to his nationality and wouldn’t be allowed to depend on the First Amendment, the court docket heard.
“We say it’s a blatantly inadequate assurance,” he mentioned. “It would cause the applicant prejudice on the basis of his nationality.”
The court docket heard that US prosecutor Gordon Kromberg had solely given an assurance that Assange would have the ability “to seek to raise” the First Amendment at a trial within the US.
Kromberg or the prosecution had given no particular assurance that Assange can be allowed to depend on the US structure in his defence in observe, the court docket heard.
Kromberg had created the priority by stating {that a} court docket within the US may discover {that a} non-US citizen wouldn’t have the ability to argue the First Amendment in nationwide safety instances.
Defence professional professor Paul Grimm, a former US district choose with a army regulation background, had given “unimpeachable evidence” in a witness assertion that the US authorities’s diplomatic assurance couldn’t bind a US court docket.
Fitzgerald mentioned prosecutors usually give assurance or undertakings, however that Kromberg’s silence – over Assange’s rights beneath the US structure – was “deafening”.
He quoted examples of instances the place the US authorities had given undertakings that prosecutors wouldn’t search a life sentence however the court docket had reversed the endeavor.
In written submissions, Assange’s authorized group argued that the US assurance that Assange would have the ability to elevate the First Amendment if he was tried within the US was not an assurance in any respect.
“What needs to be conclusively removed is the risk that he will be prevented from relying on the First Amendment on grounds of nationality,” they argued, including that with none assurance of how a prosecutor would reply to arguments made in a US court docket, “the ability to raise and rely on the First Amendment means nothing”.
They mentioned there have been “multi-fold” issues with the reassurance, which didn’t rule out the US court docket barring Assange from counting on the First Amendment on the grounds that he’s not a US citizen.
The assurance “does not bind the prosecution” to any place and a US court docket may over-turn any endeavor, the court docket heard.
“We say this assurance … cannot reassure the court there is no risk. The real risk remains,” mentioned Fitzgerald.
US Espionage Act
The case is the primary time the US has used the US Espionage Act 1917 towards a person for publishing leaked authorities paperwork for journalistic functions.
Today’s listening to comes after a panel of two judges heard Assange’s appeal towards extradition on 20- 21 February 2024.
Assange sought go away to appeal towards the secretary of state’s determination to extradite him and a ruling by district choose Vanessa Baraitser in January 2021.
The High Court rejected six out of 9 grounds for appeal in a ruling on 26 March 2024, together with an try and introduce new proof about an alleged CIA plot to kill Assange.
The court docket did, nevertheless, discover there have been three grounds on which Assange had prospects for fulfillment.
They included a refusal by the US to permit Assange First Amendment rights beneath the US structure on the grounds he was not a US citizen, which the court docket mentioned would intervene together with his rights to freedom of expression beneath Section 10 the European Court of Human Rights.
Representing the US authorities at right now’s listening to, James Lewis KC mentioned Assange’s nationality was not at challenge, nevertheless it was the authorized factual matter that Assange was not a US citizen.
He mentioned that Article 10 of the European Convention of Human Rights provides safety to journalists and whistleblowers topic to them performing “within the tenants of reasonable and responsible journalism”.
“One of the factors whether it is reasonable and responsible is where publication took place – inside a member state’s territory or outside a member state’s territory.”
He mentioned there was a distinction between a international spy publishing one thing overseas that damages nationwide safety and publishing one thing in The Times newspaper.
Lewis mentioned the US diplomatic assurance made it clear that Assange wouldn’t be discriminated towards due to his nationality and that he would have the ability to elevate arguments about his First Amendment rights.
“The point is he will be able to rely on it but that does not mean the scope will cover the conduct he is accused of,” mentioned Lewis.
He advised the court docket that former US Army whistleblower Chelsea Manning, who had leaked paperwork to WikiLeaks, had no First Amendment safety by any means.
There was no chance of First Amendment rights being prolonged to Assange, he advised.
Responding for Assange, Mark Summers KC mentioned the regulation prohibits discrimination within the trial and sentencing course of.
“The fact that Chelsea Manning was found in the end to have no substantial First Amendment claims tells you nothing at all. She was a government employee not a publisher,” he mentioned.
Fitzgerald mentioned it was merely not right that Assange would have the ability to depend on the First Amendment. It was clear he may “only seek to rely on it”.
He mentioned there have been too many problems with incontrovertible fact that remained unanswered, together with the place of the prosecution and too many problems with regulation which are unresolved to take the irrevocable step of extraditing Assange.
Dame Victoria Sharp, who heard the case with Justice Johnson, granted go away to appeal following a half-day listening to.
She ordered the prosecution and defence to agree on a draft order by 6:00pm on 24 May 2024.
The appeal shall be heard at a later date.