Tareq Haddad
(London, U.K.) In the British High Court of Justice on Tuesday, the President of the King’s Bench Division — Dame Victoria Sharp — and Justice Jeremy Johnson issued their approved judgement in the case of Julian Assange vs. the United States of America.
The 66-page judgement — accompanied by three-pages of judge’s orders and a four-page media briefing — followed two days of High Court hearings (day one; day two) in February in which lawyers for Assange sought to convince judges to allow Assange to appeal.
Previously, after lawyers for Assange submitted two separate appeal applications on a total of 12 legal grounds, another High Court judge, Justice Jonathan Swift, rejected all dozen legal arguments in June 2023. That gave rise to the February hearings in which Assange’s lawyers could orally make their case.
Tuesday’s judgement could be interpreted as having minor victories for Assange’s camp. However, as always, the devil lies in the details.
While three of nine legal grounds were accepted for a *possible* appeal, the six remaining grounds were flat out rejected.
Most glaringly, following suit with their predecessor Justice Swift, Justice Sharp and Justice Johnson once again rejected an application from Assange’s lawyers for fresh evidence to be submitted. “The applicant’s application to adduce fresh evidence is refused,” the three-page order said.
Specifically, Assange’s lawyers wanted to introduce three pieces of evidence since September 2020 — the date when evidence was last entered into this case.
Primarily, the Yahoo! News report of September 2021 that revealed once Assange and WikiLeaks published the Vault 7 files in 2017 — the biggest leak of CIA documents in history — then-director Mike Pompeo and other senior CIA officials became “completely detached from reality because they were so embarrassed.”
They were “seeing blood,” according to senior U.S. sources, and hatched plans to either exterminate Assange or extrajudicially kidnap him back to the United States.
The second piece of evidence was a statement from Joshua Dratel, a United States Attorney, who stated that Pompeo’s use of the terms “non-state hostile intelligence service” and “enemy combatant” in his now-infamous remarks about WikiLeaks in 2017 were in fact specifically chosen to providing legal cover for the possibility of assassinating or kidnapping Assange.
According to Dratel, these discussions would have included personnel from the Department of Justice, including the Attorney General, as well as National Security Division lawyers and the prosecution team.
The third and final piece of fresh evidence that was sought to be relied upon by Assange’s lawyers was that of a new statement from a Spanish witness in separate criminal proceedings where a Spanish firm, UC Global, is accused of illegally surveilling Assange while in the Ecuadorean embassy on behalf of the CIA.
The additional statement from Witness 2, a former UC Global employee who has already provided written testimony in this case, simply would have added to the record that the firm in charge of security at Ecuador’s embassy in London during Assange’s stay would have been in a position to provide essential information for “options on how to assassinate” the WikiLeaks publisher.
However, in rejecting the reasoning of Assange’s lawyers, Justice Sharp and Justice Johnson concluded at paragraph 207 of their ruling: “The respondent submits that the September 2021 article from Yahoo! News is simply another recitation of opinion by journalists on matters that were considered by the judge. The article merely repeats the assertion that the CIA were considering rendition of the applicant from the embassy, an assertion that the applicant had already relied on before the judge.
“The judge was satisfied that such matters did not provide a basis for refusing extradition. Further, the affidavit of Mr Dratel, and the second statement of Witness 2, are inadmissible and irrelevant because they merely provide commentary on the Yahoo! article.”
By the same stroke of the pen that ruled that U.S. plans to assassinate and kidnap Assange would have no impact on the original decision to extradite him to that very same country, Justice Sharp and Justice Johnson further dismissed the argument that Assange’s extradition to the U.S. would be in violation of Section 81 of the U.K. Extradition Act of 2003 as it bars extraditions in cases where individuals are prosecuted for their political opinions.
Following a summary of the arguments put forth at paragraphs 104 to 108, the judges write: “Our conclusion in summary on this ground is that the judge properly addressed the question that she was required to answer under section 81(a), namely whether the request for extradition was made for the purpose of prosecuting the applicant on account of his political opinions; and she concluded on the facts that it was not.”
“She was entitled to reach that conclusion on the evidence before her,” the judges added.
Justice Sharp and Justice Johnson further rejected the submission put forward by Assange’s lawyers that it would be a breach of process to extradite Assange by solely looking at the Extradition Act of 2003 — which has no wording around “political offences” — while ignoring the Anglo-American Treaty that does.
In agreeing with an argument put forth by Clair Dobbin KC, on behalf of the U.S., to the effect that it was an attempt to get the Treaty through the backdoor when it could not enter through the front, the justices said at paragraph 90 of the ruling: “There is no arguable merit either in the submission that by virtue of the Treaty, the ‘political offence’ bar is to be read into the 2003 Act.”
Similarly, the justices dismissed nearly all arguments put forwards by Assange’s lawyers on multiple grounds concerning Assange’s protections under the European Convention of Human Rights (the Convention).
Namely, justices refused to allow Assange to appeal on any issue concerning Articles 2, 3, 6 and 7 of the Convention — those being the right to life, the prohibition of inhuman and degrading treatment, the right to a free trial and protections against punishment without law respectively.
On Article 10 of the Convention, the right to freedom of expression, the judges also ruled that there would be no violations to Assange’s rights under Article 10 if he were to be extradited. They said that the freedom of speech protections provided by the First Amendment of the U.S. Constitution would grant Assange with similar protections under Article 10.
However, it is here where the judges gave supporters of Assange their first glimmer of hope by rightly drawing attention to the affidavits of the U.S. prosecutor in the case, Gordon D. Kromberg.
Kromberg, an Assistant U.S. Attorney in the Eastern District of Virginia, testified to the court: “Concerning any First Amendment challenge, the United States could argue that foreign nationals are not entitled to protections under the First Amendment, at least as it concerns national defense information.”
The judges ruled that if this argument was successfully advanced in a U.S. court, Assange would not receive the equivalent of Article 10 protections. Meanwhile, Assange would also be prejudiced by the fact he was not a citizen of the U.S. and thus, prejudiced by virtue of his nationality. This would be a breach under Section 81(b) of the 2003 Extradition Act, the judges said.
As such, it was on these two of three grounds where judges allowed the *possibility* of an Assange appeal.
The third being on a separate application appealing the decision by the U.K. Secretary of State to allow the extradition without seeking sufficient assurance that the U.S. will not seek to impose the death penalty on Assange.
The judges pointed to remarks by Ben Watson KC, who represented the U.K. government in February, who conceded that the Espionage Act violation Assange is charged with can carry a death-penalty sentence. He also conceded that the existing assurances provided by the U.S. in 2021 do not explicitly prevent the imposition of the death penalty.
However, the glimpse of hope for Assange supporters can once again be dimmed as judges ruled to adjourn their decision on these three grounds pending a fresh opportunity for the U.S. to once again offer the U.K. court assurances on these issues. Lawyers for the U.K. Secretary of State will also have an opportunity to file submissions.
The court ruled that the U.S. and the U.K. have to provide their assurances by April 16. If adequate assurances are not provided, an appeal on the three grounds will proceed.
If assurances are provided, lawyers representing both the U.S. and Assange will have until April 30 to submit fresh legal submissions to the court. The question of whether an appeal hearing will take place will then be scheduled for May 20.
The case continues.
Read the full judgement: