Humanitarian Victory for Assange

On 4 January 2021, the British judge Vanessa Baraitser of the Westminster Magistrates Court in London rejected the request to extradite Julian Assange to the United States in a solid 132-page judgment. This does not mean that the WikiLeaks founder has regained his freedom, however: his bail application was likewise rejected two days later on the grounds that he posed a flight risk. Assange thus has to remain in custody while the dispute over his extradition is dealt with the court of next instance. His many political and celebrity supporters feel that this is yet another chapter in a long history of injustice, for after all Assange has not been convicted of any of the crimes of which he is accused by the USA (and was investigated by Sweden). However, a detailed review of the London judgment shows that matters are much more complicated as advocated by Assange’s supporters trying to paint him as a mere investigative journalist/activist or whistleblower. Still, as will be argued here at the end, it is highly unlikely that the second instance will overturn the Magistrates Court’s decision.

Legal complexities

The case concerns possible extradition to the US on a total of 18 criminal charges (Judgment, para. 11). Following the English Court, they can be summarised as follows (para. 84): first, there is a broad allegation of “conspiracy” with Chelsea Manning and other persons to commit “computer intrusion”; second, Assange is alleged to have assisted Manning in obtaining and delivering materials and documents on his behalf, conspiring with her to gain unauthorised access to government computers; third, there is the publication of numerous diplomatic cables in unredacted form, that is, including the real names of informants, contact persons, and so forth.

To be sure, these charges are merely the hypotheses of the responsible US federal prosecutors, and would need to be verified in a trial with all due process guarantees – which of course could only happen if Assange were extradited. At any rate, the density and complexity of the charges brought suggest that it is quite doubtful whether Assange can be considered a mere journalist or whistleblower (and thus would enjoy impunity).

District Judge Baraitser first had to examine the US charges against Assange against the standard of English law (para. 75 ff.). Under section 137(3)(c) of the British Extradition Act 2003 and the bilateral Extradition Treaty between the UK and the US, extradition can only be considered if the crime in question would also be punishable in the extraditing State (so-called principle of double criminality), with section 137(3)(c) requiring a minimum term of imprisonment of twelve months and the usual equivalence test. In this respect, District Judge Baraitser not only affirms the criminality of the alleged conduct under English law (para. 85 ff.), but also emphasises the seriousness of the alleged acts, which “went beyond the mere encouragement of a whistle-blower” (para. 96) common among investigative journalists. She further asserts that Assange “does not become immune from criminal liability merely because he claims he was acting as a journalist” (para. 102).

Nor does District Judge Baraitser see any incompatibility of (possible) criminal liability with Article 10 of the European Convention on Human Rights (ECHR) (para. 109 ff.). In essence she argues convincingly that freedom of expression is not an absolute right, and that Assange in any case went beyond this right’s scope of protection by actively assisting Manning in obtaining the material (para. 118). District Judge Baraitser certainly recognises the tension between punishing the publication of such secret documents and freedom of expression, but considers a restriction to be justified here, in particular because Assange published numerous informants’ real names and thus deliberately exposed a large number of people to considerable risk. In this respect, she follows the US submissions, but explicitly distinguishes the conduct of Assange and WikiLeaks from that of traditional media (Guardian, New York Times, Spiegel, etc.), which would have carefully edited the material and not published real names (para. 132 ff.). Furthermore, District Judge Baraitser doubts that Assange acted within the framework of “responsible journalism”, because one can hardly speak of such when vast amounts of data are published on the internet without any quality control (para. 131). Nor can a so-called “right to the truth” be invoked in Assange’s favour, because this is not a right enforceable in English courts (para. 138 ff.); (indeed, it is not a hard right under international law either). Nor had Assange proved that specific harm had been averted by the publication of the material (para. 147).

Political persecution?

Given that the offences are punishable in the UK and there is thus no obstacle to extradition in this regard, the next question is whether the prosecution of these kinds of crimes against State interests counts as political persecution and extradition is barred on these grounds (para. 34 ff., 152 ff.). It can be argued, and with good reason, that the relevant acts alleged are political offences because they are based on classic espionage legislation (the US Espionage Act of 1917, now codified in Chapter 37 “Espionage and Censorship” of Title 18 of the US Code). In District Judge Baraitser’s view, however, this ultimately is irrelevant, because no domestically enforceable individual rights for Assange can be derived from the Extradition Treaty (which in Art. 4 provides for political offences as an obstacle to extradition, para. 41 ff.). In a dualistic constitutional order such as that of the UK, such rights would need to be conferred by a corresponding Act of Parliament; however, Parliament did not adopt political offences as an obstacle to extradition in the Extradition Act, instead introducing the obstacle of prosecutions based on an individual’s “political opinion” (section 81). In this respect, District Judge Baraitser follows the traditional two-dimensional understanding of extradition, according to which an extradition treaty is solely an agreement between governments, from which no subjective rights can be derived for the individual concerned. However, in light of the increasing importance and recognition of the status of the individual as a subject with rights in extradition law, this view (considering the extraditurus as a mere object of the proceedings) must be regarded as outdated. At any rate, this does not alter the fact that the British Parliament has, in effect, abandoned the political offence exception as a bar to extradition.

As a consequence, one is thrown back on the extradition obstacle of “extraneous considerations”, which include, inter alia, where the request for extradition is for the purpose of prosecuting or punishing political opinions (section 81(a) Extradition Act) or a subsequent trial prejudices the accused on account of his/her political opinions (section 81(b)). However, District Judge Baraitser states that no bar to extradition exists in this respect, either, providing detailed reasoning for her view (para. 152 ff.). The burden of proving the existence of such a bar lies with the person to be extradited. Here, a different standard of proof applies (a balance of probabilities in section 81(a) and “substantial grounds” or a “serious possibility” in section 81(b)). Ultimately, District Judge Baraitser does not consider it proven that Assange has indeed become the target of a politically motivated prosecution. While he is considered a threat to national security by the intelligence services (here, an infamous statement by then CIA Director Mike Pompeo is cited, in which he called WikiLeaks a “non-state hostile intelligence agency”, para. 174), it does not follow from this that the executive or the intelligence agencies interfered with the activities of the federal law enforcement agencies or exerted undue pressure on them.

District Judge Baraitser sees no reason to doubt the integrity of the US criminal prosecution authorities and thus rejects a political motivation for the extradition request within the meaning of section 81(a). The same conclusion is then justified much more briefly with regard to section 81(b) (para. 193 ff.). In essence, District Judge Baraitser trusts that US criminal proceedings guarantee a due process, ruling out both their political manipulation and the imposition of particularly harsh conditions of imprisonment on Assange solely because of his political views. While she in no way doubts the generally harsh prison conditions in the US (to which she refers explicitly later in the judgment), she does doubt that political motivations play a role in imposing them.

Is there an obstacle to extradition due to the passage of time?

Extradition is also inadmissible if it would appear “unjust or oppressive” due to the “passage of time” (section 82 Extradition Act). District Judge Baraitser rejects this, too (para. 200 ff.), in particular because the length of the extradition proceedings was due first and foremost to Assange absconding to the Ecuadorian embassy and thus had been self-inflicted. Moreover, Assange had failed to prove that extradition would prove unjust or oppressive as a consequence of this delay.

In this context, it is worth recalling that Assange’s flight was in breach of his bail conditions and that he stayed in the Ecuadorian embassy for almost seven years (from 19 June 2012 until his arrest on 11 April 2019). The fact that he had already evaded his extradition proceedings once (and over such a long period of time) was also the reason why District Judge Baraitser rejected his renewed bail application two days after the ruling on his extradition.

Human rights objections

Assange alleges violations of Arts. 3, 6, 7 and 10 ECHR as implemented in the Human Rights Act 1998 (para. 218 ff.). The invocation of Art. 3 dealing with his medical condition is discussed below. District Judge Baraitser examines the human rights objections in detail, but ultimately rejects them all, essentially because in her view the US criminal justice system operates fairly, offering numerous safeguards under the rule of law. Moreover, violations of the aforementioned rights would only constitute a bar to extradition if the extradition thus proved to be a “flagrant denial of justice”.

The defence’s arguments on this set of issues are of varying quality. For example, the fear (concerning Art. 6 ECHR) that the jury in a criminal case against Assange would be composed mainly of government employees is “untenable” (para. 226), if only for the reason that under US law both parties have the possibility of influencing the selection of jurors. Conversely, the objection (concerning Art. 7 ECHR) that the relevant offences are in part broad and vague certainly carries weight, but in this respect District Judge Baraitser correctly refers to the “due process clause” of the Fifth Amendment to the US Constitution, from which adequate protection against overly vague and broad elements of crimes arises via the so-called doctrines of “void of vagueness” and “overbreadth”. US case law understands this protection – as does the ECtHR – subjectively in the sense of providing the accused with “fair warning” (para. 252 ff.). Finally, as far as Art. 10 ECHR is concerned, District Judge Baraitser again trusts in the due process nature of US criminal proceedings, in particular that a US court will also adequately appreciate Assange’s right to freedom of expression (para. 272 ff.).

The outcome: no extradition because of suicide risk

The fragile state of Assange’s health, which was confirmed by numerous experts and manifested primarily in a moderate to severe depression with suicidal tendencies, ultimately proved to be the deciding factor (para. 278 ff.). The relevant provision in this regard is section 91 of the Extradition Act, according to which the physical or mental condition of the person to be extradited must be examined in the course of the extradition hearing in order to determine whether extradition might prove to be “unjust or oppressive”. British case law sets a high standard in this respect and requires assessments by several experts appointed by the parties. Here, section 91 proves to be a lex specialis on Art. 3 ECHR and supersedes it (para. 283).

Assange’s high risk of suicide is concluded firstly from the specialists’ examination of his current health condition and secondly from the prison conditions to be expected in the US. In this regard, District Judge Baraitser sees a high risk that Assange, immediately after extradition, will be subjected to so-called special administrative measures, which essentially entail solitary confinement. Furthermore, it is to be expected that these harsh prison conditions would continue post-conviction. As far as the expert psychiatric evidence is concerned, the Court relies primarily on the expert opinion of Professor Emeritus Kopelman of King’s College, London, who states with striking clarity: “I am as confident as a psychiatrist ever can be that, if extradition to the US were to become imminent, Mr. Assange will find a way of suiciding” (para. 316). On this basis, District Judge Baraitser concludes that there is a substantial risk that Assange will commit suicide if extradited (para. 237 ff.). This risk would not be significantly reduced by possible and usual preventive measures, because Assange, in view of his intellectual abilities, would find a way to carry out his suicide plan regardless (para. 350 ff.). Based on these findings, it would be “oppressive” and thus inadmissible to extradite Assange to the US (para. 363).

It is difficult to see how these considerations, which are extensively supported by expert evidence and convincingly reasoned in legal terms, could be overturned on appeal, because to do so would require a radical improvement in Assange’s health and/or in the conditions of his imprisonment in the US. To be sure, a prerequisite of a different decision on appeal would be that the US authorities issue numerous assurances, in particular renouncing aggravated prison conditions and guaranteeing permanent psychosocial and psychiatric care. As far as the admissibility of Assange’s extradition in the narrower sense is concerned, however, the ruling shows that the narrative of the unjustly persecuted, enlightened freedom fighter, which Assange’s supporters often advocate with great effect in the media, is probably overly simple; in any case, this narrative would not stand in the way of extradition to the US.