At Assange’s trial, we may expect that the US will argue that hacking and computer intrusion are not journalism in action. On the other hand, Assange’s counsel will argue that he was no different from a publisher or editor who sought and published information
By Anil Madan
Julian Assange is well known as the founder of Wikileaks, an organization that has published secret and classified US government documents as well as other documents revealing corruption, abuse, tax avoidance, and illegal activities by governments, companies, and individuals around the world.
Last week, the UK’s High Court in London rejected the earlier findings of a Westminster District Court Judge (DJ) that Assange could not be extradited to the US for trial and instead ruled that the matter should be submitted to the UK Secretary of State to make the final decision on extradition.
Starting in 1917, by a series of criminal complaints, indictments and superseding indictments, the United States brought charges against Julian Assange on 18 counts including conspiracy to commit unlawful computer intrusion, and for obtaining, receiving and disclosure of “National Defence Information” in violation of US law. The US government first requested that authorities in the UK arrest Assange and then filed, through diplomatic channels, a request for his extradition to the US in accordance with an extradition treaty between the two countries.
Assange’s mental condition
Assange opposed the extradition request on several grounds. Significant among his objections were that the UK-US Extradition Treaty prohibits extradition for a political offense; that extradition would violate various provisions of the European Convention on Human Rights including freedom of expression; and that extradition should be refused because it would be unjust and oppressive by reason of Mr Assange’s mental condition and the high risk of suicide that his confinement under harsh conditions in the US both pre-trial and post-trial would present.
The Westminster District Court Judge rejected all of Assange’s arguments, noting in particular that his arguments based on lack of due process and freedom of expression and freedom of the press would be available in proceedings in the US, but nevertheless, she concluded: “I am satisfied that the risk that Mr Assange will commit suicide is a substantial one.” As a result, she denied the request for extradition. It is worth noting that the Judge observed: “Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed, and it does not provide an unfettered right for some, like Mr Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.”
The US Government appealed to the London High Court. That court has now allowed the appeal, concluding that the District Court Judge’s ruling was incorrect.
It is important to note that the US appeal was limited to the issue of whether the District Court Judge was wrong to find that Mr Assange’s mental condition was such that it would be oppressive to extradite him. In particular, after the District Court Judge’s concerns were raised, the US gave the court assurances regarding Assange. The High Court concluded that it is satisfied that the US government’s assurances:
(a) Exclude the possibility of Mr Assange being made subject to “special administrative measures” or held at a maximum-security prison either pretrial or after any conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention;
(b) Undertake that the USA will consent to an application by Mr Assange, if he is convicted, to be transferred to Australia to serve his sentence; and
(c) Undertake that whilst Mr Assange is in custody in the USA he will receive appropriate clinical and psychological treatment as recommended by a qualified treating clinician at the prison where he is held.
The High Court ruled that an expert witness who testified on behalf of Assange misled the District Court Judge and that his testimony should either have been excluded or not relied upon.
As a result, the High Court has ruled that the request for extradition should be referred by the court to the UK Secretary of State for a final decision on extradition.
First Amendment to the US Constitution
It is important to note that the UK High Court decision does not dispose of important issues concerning due process, freedom of speech and expression, freedom of the press and whether Mr Assange is a journalist and, if so, is he entitled to immunity from the US prosecution under the First Amendment to the United States Constitution.
On the question whether Assange is entitled to protection as a journalist, the High Court noted: “The US notes that the defence does not argue that the conduct set out in the request is insufficient to constitute the charges identified. It submits that the defence arguments are based on the fundamental mischaracterisation of the prosecution case, re-iterating that Mr Assange is prosecuted for complicity in Ms [Chelsea] Manning’s unlawful obtaining of the material and conspiring with hackers to commit computer intrusions for the benefit of Wikileaks. He is said to have personally encouraged not only the provision of national security information but also computer hacking more generally, to provide himself and Wikileaks with stolen information.”
In an effort to overcome Assange’s claims relating to freedom of speech, expression and of the press, the US set out in detail not just the damaging nature of the disclosures but also that Mr Assange knew that the dissemination of the names of individuals endangered them. Moreover, the US submitted that any publishing charges against Mr Assange are limited to documents containing the unredacted names of sources that compromised their safety.
Talibans hunt informants
One such example related to the raid by US Armed Forces on the compound of Osama Bin Laden in Abbottabad, Pakistan, on May 2, 2011, which revealed correspondence to show that Bin Laden had obtained in Afghanistan significant activity reports and diplomatic cables from the WikiLeaks website. On 30 July 2010, the New York Times published an article entitled “Taliban Study WikiLeaks to Hunt Informants” stating that after the release of the significant activity reports, a member of the Taliban had contacted the New York Times and stated: “we are studying the report. We knew about the spies and people who collaborate with US forces. We will investigate through our own secret service whether the people mentioned are really spies working for the US. If they are US spies, then we will know how to punish them.”
In this regard, the District Court Judge’s written findings contain this relevant information: “The request states that Mr Assange knew of the dangers. For example, in an interview with the US television programme 60 Minutes, when asked about the above newspaper report, he stated, “the Taliban is not a coherent outfit, but we don’t say that it is absolutely impossible that anything we ever publish will ever result in harm – we cannot say that.”
In August 2010, in an interview at the Frontline Club in London, Mr Assange called it “regrettable” that sources disclosed by WikiLeaks “may face some threat as a result”. In the same interview he stated, “we are not obliged to protect other people’s sources, military sources or spy organisation sources, except from unjust retribution” adding, “there are numerous cases where people sell information or frame others or are engaged in genuinely traitorous behaviour. Actually, that is something for the public to know about.”
On 27 November 2010, shortly before he published the diplomatic cables, he was informed by the US State Department’s legal adviser that their publication would “place at risk the lives of countless innocent individuals – from journalists to human rights activists and bloggers to soldiers to individuals providing information to further peace and security.”
At Assange’s trial, we may expect that the US will argue that hacking and computer intrusion are not journalism in action. On the other hand, Assange’s counsel will argue that he was no different from a publisher or editor who sought and published information. That the US government classified such information as secret and made its disclosure a crime should not trump his constitutional rights under the First Amendment. Further, Assange’s counsel will argue that the US law making such conduct criminal has the effect of denying constitutional rights to free expression. There are entirely separate issues whether Assange is entitled to protection as a whistleblower once removed or whether he is indeed a journalist.
The issues are not clear-cut.
* Published in print edition on 17 December 2021
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