WikiLeaks founder Julian Assange could face the death penalty for a prosecution based on ‘state retaliation ordered from the very top’, the High Court heard on Wednesday.
Mr. Assange is seeking permission to appeal a 2021 decision by a UK court to allow his extradition to the US, where he faces a 175 year sentence for publishing. The 52-year-old Australian had initially won his case against extradition on the grounds that it would be ‘oppressive’ and ‘result in his death’.
In December 2021 that decision was overturned following ‘assurances’ provided by the US which Amnesty International labeled ‘not worth the paper they are written on’. Mr. 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, his extradition could be implemented swiftly, his wife Stella Assange telling journalists before the beginning of the trial that he ‘could be on a plane in days’.
The extradition request for the publisher relates to the 2010 WikiLeaks release of cables detailing military campaigns in Afghanistan and Iraq and the Guantanamo Bay detention camp. The release documented war crimes, systematic human rights abuses, rendition, as well as torture and other crimes and abuses.
Julian Assange and WikiLeaks famously published the ‘Collateral Murder’ video, which showed the July 2007 killing by an Apache helicopter crew of eleven civilians, including Reuters journalists Namir Noor-Eldeen, 22, and Saeed Chmagh, 40.
The video, recorded by the helicopter gun-sight, showed the helicopter firing into a group of Iraqi civilians in Baghdad after being given permission from a commanding officer, killing 11 men and seriously wounding two children. The impact of these publications was worldwide and undeniably in the public interest.
Joel Smith, representing the US, disputed the claim from Mr. Assange’s legal team that the sentence the publisher would face in the US would be ‘disproportionate’ and a breach of his human rights, saying that ‘sentencing would follow guidelines, and would reflect consideration of aggravating and mitigation factors’. Assange is facing a 175 year sentence for this publishing.
Responding to the US case, Edward Fitzgerald KC, told the court that Mr. Assange was being prosecuted on political grounds, and that it was not legal to extradite him on this basis.
Fitzgerald said that as a non-US citizen Mr. Assange risked being denied rights available to a US citizen. ‘Mr. Pompeo (former Trump CIA head) said Mr. Assange wouldn’t have these rights because he’s a foreigner, and that is evidence he might be prejudiced in the USA.’
This included, he said, US constitutional rights, including the first amendment right which guarantees freedom of the press, which US citizens are entitled to.
Assange barrister Mark Summers KC, raised with the court there had been no reference to the fact the material Mr. Assange had published exposed war crimes. The barrister said it was ‘the exposure of a state-level crime’. In response, ‘what happened is state retaliation ordered from the very top.’
Summers said this was reflected in the fact Mr. Assange had been denounced at senior government level, and then-president Trump was drawing up plans to assassinate him.
He said: ‘It was submitted to you that the US government has acted at all times in good faith in bringing this prosecution. We don’t understand how that can be advanced with a straight face, in the face of evidence the president was planning on kidnapping and killing him.’
He also reiterated that Mr. Assange had gone to ‘extraordinary’ lengths in the year prior to publication to redact names from the documents, and that he could not be held responsible for their eventual publication. The barrister said the eventual publication of the names by third parties who gained access to the encrypted files was ‘unintended, unforeseen and unwanted.’
‘At best Mr. Assange could be alleged to have been reckless in the provision of the key to Mr Lee. It would be an absurd allegation to make, but that’s the highest anyone could place it.’
He added that there was ‘no proof at all that any harm actually eventuated’ from these publications. Mr Summers also returned to what he described as the ‘horrendous punishment’ awaiting Mr. Assange were he to be extradited to the US.
He said Mr. Assange would be imprisoned for the rest of his natural life, a punishment, he said, ‘that would shock the conscience of every journalist around the world.’
He said the courts in the UK should have carried out a balancing exercise on Mr. Assange’s actions to determine the public interest in the disclosures.
He noted that the Strasbourg court deemed ‘exposure of state-level crimes as the very highest level of public interest.’
‘The crimes being discussed here were real and ongoing and were happening then to real people. And the disclosures had the capacity and capability of stopping that happening, and they did. ‘Drone killings in Pakistan came to an end, the war in Iraq came to an end’.
Mr Summers said there was no guarantee the US would not subject Mr. Assange to the death penalty in the event of his extradition. He said: ‘We don’t understand why there is no usual death penalty assurance in this case.’
‘The consequences of it are that discharge must follow if they continue to decline to give it.’
The judges have reserved their decision, which could be delivered at any time.
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Julian Assange could face death penalty in US, High Court hears
