[News:] Assange lawyers make case for fresh appeal at U.K. High Court

(London, U.K.) Lawyers for Julian Assange on Tuesday made their case at the British High Court for why judges should permit them to appeal an earlier ruling that would see the WikiLeaks founder extradited to the United States.

In a case that has been before British courts since February 2020, Assange has been imprisoned at the maximum-security H.M.P. Belmarsh in southeast London for the duration of that time — in fact, since his arrest from the Ecuadorean embassy on April 11, 2019.

And despite the recent outcry from Britain’s Conservative government over defendants not appearing in court, prompting them to propose legislation that would give judges the power to force defendants to appear, on the contrast, Assange has been insisting to be present before the court. However, he has routinely been refused the right and the last time he was seen in person was January 2021.

Opening proceedings on Tuesday, Dame Victoria Sharp — President of the King’s Bench Division of the High Court — said that every effort had been made to bring Assange to court, but that he had in fact been too unwell to attend. He was even too unwell to follow the hearing remotely via video-link, she added.

It was a startling development that underscored how precarious Assange’s health must be like after nearly five years of incarceration. Particularly as he previously suffered what was a described as a mini-stroke in 2021, as well as the recent revelation from Reporters Without Borders who stated that in their most recent visit to him in January, he suffered from a broken rib caused by excessive coughing from a respiratory illness.

Edward Fitzgerald KC, who opened the case for Assange on Tuesday, told the court that the charges brought against the journalist and publisher by the U.S. were in direct consequence of his exposing of its “grave criminality.” Namely, Assange’s exposure of U.S. renditions, torture, dark prisons, drone killings and assassinations. Thus, Fitzgerald argued, the charges against Assange were politically motivated.

Underlining the point, Mark Summers KC — also representing Assange — told the court: “This is a paradigm example of state retaliation for the expression of political opinion.”

The barrister further argued that America’s actions against Assange were part of a wider effort under former U.S. President Donald Trump to shield American officials from prosecutions for the above-mentioned crimes that were underway in Germany, Spain, Poland and Italy. Those efforts, Summers said, went as far as going to coerce and intimidate prosecutors from the International Criminal Court who in 2016 opened an investigation into such war crimes emerging from Afghanistan, demonstrating America’s “intention to misuse its own criminal courts” for the purposes of giving impunity to its officials.

When the District Judge Vanessa Baraitser issued her judgement in the Assange case in January 2021, she took none of this evidence into consideration, Summers said.

Equally, Summers said that Baraitser failed to adequately take into consideration evidence that was presented before the court that officials from the U.S. Central Intelligence Agency made plots to either kidnap or poison Assange while he was in the Ecuadorean embassy.

As a further reason for why Assange should be permitted to appeal, Summers said that fresh evidence which was not available at the time of Baraitser’s ruling only bolsters the case that CIA officials made sketches to kidnap or poison the journalist. Namely, the Yahoo! News report that emerged in September 2021 which cites dozens of American officials who laid out how top Trump officials “were seeing blood” when it came to Assange and WikiLeaks, seeking “vengeance” for their publication of the Vault 7 materials — the biggest leak of CIA documents in history. The report further disclosed how talks on the possibility of killing Assange were discussed in the presence of the then-president.

Fitzgerald, in pointing to the Yahoo! News story, said that it also raised a point that lawyers had not been aware of when then-CIA director Mike Pompeo labelled WikiLeaks a “non-state hostile intelligence agency” in 2017 — stating that this was more than just “rhetoric” but rather “legal cover” for their extrajudicial activity.

Fitzgerald further pointed to how the first indictment against Assange — filed in December 2017 — came as a direct consequence of White House lawyers worrying that if the publisher was kidnapped and renditioned to the U.S. without charges in the country, it would have no legal basis to continue holding him. Yahoo! News reported: “The White House told Attorney General Jeff Sessions that if prosecutors had grounds to indict Assange they should hurry up and do so, according to a former senior administration official.”

In addition to the political nature of how the charges came about, lawyers for Assange argued that Baraitser was wrong to only apply the Extradition Act of 2003 — which makes no mention of a prohibition for political offences such as those of espionage with which Assange is charged — but that she should have also weighed the Anglo-American Extradition Treaty where such a protection is stated.

By not including such language in the 2003 Act, Parliament had no such intention of removing the protection, Fitzgerald told the court. “The exception to political offences is included in almost every single international treaty signed by the U.K.,” he said, adding that it was one of the most universally accepted concepts of international extradition law. It is protected against by the United Nations, the Interpol Constitution as well as a number of Western democracies, he said.

Fitzgerald further argued that in seeking to extradite Assange for conduct prohibited by the Treaty, which underpins the 2003 Act, the U.S. was engaged in an abuse of process. Defence submissions to the court pointed to Article 1 of the Treaty which states: “The Parties agree to extradite each other, pursuant to the provisions of this Treaty.”

Other parts of the defence’s submissions insisted that the lower court improperly applied the requisite tests for whether the extradition would be in breach of the European Court of Human Rights’ (ECHR) Article 10 — enshrining the right to freedom of expression.

“This legally unprecedented prosecution seeks to criminalise the application of ordinary journalistic practices of obtaining and publishing true classified information of the most obvious and important public interest,” the defence submissions said.

The lawyers argued that had Baraitser applied the relevant case law — namely Stoll v. Switzerland (2008) and Guja v. Moldova (2011) — where it is stated that the disclosure of state secrets must be weighed against the public interest of such disclosures, she would have been forced to decide the case differently. That is even the case if WikiLeaks named U.S. informants in its publications, potentially putting them at danger, the defence stipulated.

Further elements of the defence submissions argued that the lower court also failed to give proper considerations to the protections under Article 6 of the ECHR — the right to a fair and public hearing that includes protections against disproportionate sentences — as well as Article 7 of the Strasbourg court that grants protections on “foreseeability.” Lawyers for Assange said this prosecution was “completely unforeseeable” because no other publisher in history had ever been charged, let alone successfully prosecuted, under the Espionage Act of 1917.

All of the defence’s submissions are available below.

Prosecutors on behalf of the U.S. will make their arguments as to why an appeal should not be granted on Wednesday. Their submissions are also available below.

The case continues.

—

Defence skeleton arguments for renewal application

Defence grounds for renewal under Section 103

Defence grounds for renewal under Section 108

Defence speaking note

USA grounds of response