Press Release

Assange extradition is politically motivated, High Court hears

The decision to extradite WikiLeaks founder Julian Assange to the US is illegal because he is accused of ‘political offences,’ the High Court heard today.

Assange is accused by the US government of conspiring with army intelligence analyst Chelsea Manning to leak classified military documents online between January and May 2010. The Australian is seeking permission to appeal a 2021 decision by a UK court to approve his extradition to the US, where he faces charges under the country’s 1917 Espionage Act.

The 52-year-old had initially won his fight against extradition on the grounds he was likely to kill himself if held under harsh US prison conditions. But in December 2021 judges found the US authorities had given sufficient assurances to the UK that Assange would be treated humanely in an American prison, and overturned the decision.

Assange appealed against that ruling, but last June High Court judges upheld the decision to approve the US extradition order, which was signed by then UK home secretary Priti Patel in June 2022. If he is refused permission to bring a further appeal, Assange is likely to be extradited in the coming weeks to face trial for 18 charges, 17 of which fall under the Espionage Act.

The charges include conspiracy to receive, obtain and disclose classified diplomatic and military documents. Assange’s lawyers say he faces up to 175 years in jail if convicted. He has spent the last five years at Belmarsh maximum security prison in southeast London.

The charges against Assange relate to the 2010 release by WikiLeaks of 500,000 secret files detailing aspects of military campaigns in Afghanistan and Iraq and secret cables about Guantanamo Bay. This included the notorious ‘Collateral Murder’ video, which showed the July 2007 killing by an American Apache helicopter crew of eleven civilians, including Reuters journalists Namir Noor-Eldeen, 22, and Saeed Chmagh, 40.

The video, recorded by the helicopter gunsight, showed the helicopter crew firing into a group of Iraqi civilian men in Baghdad after being given permission from a commanding officer, killing 11 men and seriously wounding two children. In January 2021, Judge Vannesa Baraitser ruled there was a ‘real risk’ Assange would be locked up at the Administrative Maximum Facility (ADX) if convicted, which would cause his health to significantly deteriorate.

The US government gave the UK diplomatic assurances Assange would not be put in Special Administrative Measures (SAMs), a severe form of solitary confinement only used on terrorism and national security prisoners, but the US reserved the right to impose SAMs if they conclude a future ‘act’ met the test for it. Under SAMs, it would be a criminal offence for Assange to even speak to another prisoner, the court heard. The US also gave assurances it would consent to transferring Assange to an Australian prison if he applies for it after he is convicted and sentenced, and will not be housed in Colorado supermax prison ADX Florence before trial. Assange would also receive any required medical treatment while in US custody, the US government assured.

He is appealing on the basis that extradition is barred by the treaty, and by inadequate specialty protection. Assange’s barrister Edward Fitzgerald KC said his extradition for ‘purely political offences’ was illegal and that ‘the secretary of state should have refused to authorise extradition.’ He told the court the decision breached of Article Four of the 2003 Anglo-US extradition treaty, which, he said, prohibited extradition on political grounds.

He said: ‘The offences with which Mr Assange is charged are all ‘political offences’, extradition for which is squarely prohibited by the terms of Article 4(1) of the Treaty.’ Mr Fitzgerald said it would be a ‘fundamental breach of Article 4 of the treaty to extradite him on that basis.’

‘We submit that extradition in breach of a prohibition in article four would result in detention that’s arbitrary, and in contravention of Article 5 of the European Convention on Human Rights (EHCR).

He added: ‘It’s an abuse of process to seek extradition for a political offence in breach of the express terms of the treaty.’ Mr Fitzgerald said espionage, which covers the offences his client is accused of, was ‘self-evidently a political offence’ and cited a number of examples where extradition requests had been refused on the grounds they related to ‘purely political offences.’

He said Assange’s alleged offences amount to ‘exposing information contrary to national defence interests, in a manner that was alleged to be damaging to the interests of the US state. ‘Those are all political offences in law, and extradition is prohibited in respect of all such offences under Article 4.’

Mr Fitzgerald said the political nature of his alleged offences was reflected in the designation of Assange as a ‘non-state hostile intelligence source’ by the US Senate and Secretary of State. He also reminded the court of the fundamental importance of the prohibition against extradition on political grounds, saying: ‘The prohibition is age-old and embraces a value accepted by successive UK governments.

‘It started in the nineteenth century, and it’s included in almost every extradition treated concluded by the UK.’ He took issue with the view taken by the judge who approved his extradition in 2021 that Article four had been removed in the 2003 Extradition Act. Mr Fitzgerald said the fact the Act does not make specific reference to the prohibition, which is clearly included in the US-UK extradition treaty, did not mean it does not apply.

He said: ‘The District Judge relied on findings that, when it enacted the Extradition Act 2003, Parliament clearly took the decision to remove the political offences bar previously available.

We say not so. We say it’s still there because you can’t just look at a statute and say the absence of something means it’s not there and cannot be relied upon. ‘Certainly, you can’t look at it and say that parliament was excluding any reliance on the treaty. Parliament just didn’t say anything about that particular thing. ‘It’s a big step to say that this centuries-old protection, included in every Anglo-US extradition treaty, has simply been removed by silence. ‘And we say it hasn’t because there’s still [ECHR] Article 5, and Article 5 has been retained.’

Article five of the ECHR, which Mr Fitzgerald described as a ‘shield against state intervention,’ enshrines an individual’s right to liberty and security. He said it would be ‘contrary to the international obligations of the UK were the court to adopt an approach contrary to international law.’

Mr Fitzgerald added that both District Judge Baraitser, who made the 2021 decision to extradite Assange, and then Mr Justice Swift who rejected Assange’s appeal in 2023, failed to consider whether the charges were political under Article four, or whether extradition was permissible under Article five of the ECHR.

He also said the request to extradite Assange in clear breach of Article four of the treaty was itself a breach of process, and grounds for appeal. ‘It is, in any event, an abuse of process for the USA to request extradition for conduct prohibited by the terms of the relevant Treaty.

Article one provides that “the parties agree to extradite to each other, pursuant to the provisions of this treaty.”’ ‘The 2003 Act does not preclude reliance on the exemption found in Article 4 of the Treaty.

That is doubly true of a Treaty agreed after the enactment of the 2003 Act.’ Mark Summers KC, also representing Assange, warned that his client faced the risk of extra-judicial action by the US in the event he were extradited. He said the USA had a track record of ‘preparedness to use criminal prosecutions as a means of retaliation’ against its enemies, but that the judge who approved the extradition in 2021 had not taken this into account.

He credited her with taking into account that the CIA had demonstrated hostility to Assange when they classified him as a ‘non-state hostile intelligence agency’ , but said she had ‘dismissed this on the grounds they did not speak for the US administration.’

Mr Summers said this was incorrect, given that the designation as a non-state hostile intelligence agency’ phrase had previously been used by the US Senate and Secretary of State. The district judge had also decided there was ‘there was no presidential hostility to Assange from Donald Trump, the then president of the US. ‘That’s almost laughable now when we know from fresh evidence that then-President Trump requested detailed options to kill Assange in 2017.’

This was while Assange was residing in the Ecuadorian Embassy in London. He added that from evidence that emerged since her ruling, ‘It’s clear US Government officials had told the CIA of a plot to kidnap Assange, to rendition him, or else straightforwardly to murder him.

‘The evidence is senior CIA and administrative officials requested detailed plots. The president himself requested to be provided with options for how to do it.’ He added that the district judge knew that ‘the prosecution that then came had all the hallmarks of persecution’ but said she hadn’t given it proper consideration when reaching her decision to approve the extradition.

He also noted that a journalist had never before been prosecuted under the 1917 Espionage Act. ‘There has never been a prosecution in the act of obtaining state secrets. This prosecution crosses a new legal frontier.’ He said that when the Espionage Act was first introduced, lawmakers specifically rejected the suggestion that it extend to the publishing of documents.

The hearing continues