Assange ruling shows that extradition is a pressing risk for whistleblowers and journalists alike
Friday morning this week the High Court in London ruled that the extradition of WikiLeaks Publisher Julian Assange to the United States should go ahead. The Lord Chief Justice and Mr Justice Holroyde ruled assurances given by the United States adequately responded to concerns that extradition would be "oppressive."
At the beginning of this year, a District Judge sitting at Westminster Magistrates' Court decided that Assange should not be extradited because of the potentially dire impact on his health and well-being, which has already deteriorated to an alarming extent as a result of the various forms of detention he has been subjected to over the past decade.
None of DJ Baraitser's findings on Mr Assange's health are changed by today's ruling.
In addition to the humanitarian concerns, Blueprint for Free Speech, along with almost every other international freedom of expression organisation, has warned about the dire precedent this case presents for press freedom globally. Julian Assange is the first journalist to be indicted under the controversial 1917 US Espionage Act. He faces 17 espionage charges related to WikiLeaks' publications of 2010 and a further computer crimes charge related to journalist-source communications.
Rather ironically, this ruling has been handed down on the same day that two other journalists under threat, Maria Ressa and Dmitry Muratov receive the Nobel Peace Prize in Oslo. This October, announcing this year's Laureates, the Nobel Peace Prize committee was clear that the award was being made in the context of a deteriorating environment for working journalists internationally. They said:
"The Norwegian Nobel Committee is convinced that freedom of expression and freedom of information help to ensure an informed public. These rights are crucial prerequisites for democracy and protect against war and conflict. The award of the Nobel Peace Prize to Maria Ressa and Dmitry Muratov is intended to underscore the importance of protecting and defending these fundamental rights."
What happens next
Julian Assange's legal team are likely to apply for permission to appeal to the UK Supreme Court. They have previously also indicated that they intend to cross-appeal on legal points rejected at Westminster Magistrates’ Court.
These legal points include issues that are crucial to the overall significance of what has been gradually winding its way through the legal system: the freedom of the press and the ability of national courts to resist politically motivated prosecutions.
Should the UK Supreme Court decide not to hear an appeal, there is potential recourse to the European Court of Human Rights in Strasbourg. The European Court of Human Rights is part of the Council of Europe, several parts of which have expressed alarm about this prosecution.
For the meantime, Julian Assange will remain imprisoned at HMP Belmarsh, a high security prison in southeast London. Legal proceedings in the UK could continue for years yet.
What the ruling tells us
Today's ruling is a reminder that extradition is not, fundamentally, about the rights of the defendant. It is an arrangement between states and maintaining the integrity of that relationship is always a major concern in extradition cases.
The High Court has ruled that assurances given by the US, which were only made at the appeal stage, should be given a high priority.
"An offer of assurances in an extradition case is a solemn matter, requiring careful consideration by the requesting state of its willingness to give specific assurances to another state."
The US made several undertakings in this case, which included the proposal of a post-conviction transfer to Australia, an undertaking that appropriate clinical and psychological treatment will be made available in the US and undertaking that Mr Assange would not be imprisoned in the "Supermax" prison at ADX Florence or put under Special Administrative Measures.
Amnesty International has produced an analysis of the shortcomings of the assurances the US has made in this case. It is worth adding that the US has many varieties of repressive prison regime at its disposal that fall outside the ambit of those assurances entirely.
This week, Blueprint for Free Speech awarded Daniel Hale, who blew the whistle on the US drone program, our International Whistleblowing Prize for 2021. Hale, who was convicted of Espionage Act charges this summer, is currently incarcerated in the Communications Management Unit (CMU) at Marion, Illinois, despite the difficulties presented by his PTSD being raised during his trial proceedings.
Hale's ability to communicate with friends and family is restricted at the CMU and he is limited in what he can express to the outside world. The nature of his incarceration means, for example, that he was not able to deliver a public message on winning our award this week.
Despite the good reason for questioning whether the US assurances are meaningful, the position expressed in today's ruling is that senior judges in the UK are simply not empowered to do so:
"The reality is that this court is being invited to reject the USA's assurances either on the basis that they are not being offered in good faith or that they are for some reason not capable of being accepted at face value. That is a serious allegation, particularly bearing in mind... that the United Kingdom and the USA have a long history of cooperation in extradition matters, and the USA has in the past frequently provided, and invariably fulfilled, assurances."
The ruling goes on to explain that this issue was raised and dismissed in the case of Babar Ahmad. Ahmad ‘s own comment on the morning's ruling illustrates the shortcomings of this approach:
Can good faith be questioned?
Today's ruling makes for troubling reading for those monitoring the use of extradition as a retaliatory measure against public watchdogs - that is journalists, whistleblowers and activists. The presumption of trust between jurisdictions, and the corresponding decline in the use of the traditional "political offence" bar to extradition, means that extradition as an institution is increasingly vulnerable to this kind of exploitation.
Within the European Union, where the European Arrest Warrant implies a high degree of trust between EU member states, we have recently seen extraditions of whistleblower Rui Pinto and journalistic source Julian Hessenthaler, without proper consideration of the press freedom or political implications.
SBM Offshore whistleblower Jonathan Taylor, a UK citizen, was trapped for a year in Croatia pending a retaliatory extradition request from Monaco, where his former employer had made a criminal complaint against him. Jonathan Taylor, who was this week named as the joint winner of our 2021 UK Whistleblowing Prize, was only allowed to return home thanks to a political decision made by Croatia's Foreign Minister.
None of which is to say that the UK courts are unable or unwilling to look into the political motivations of extradition, although they are more likely to do so in cases that concern states with which the UK has a cooler political relationship.
British politicians have also questioned whether assurances from the US should be accepted uncritically, their good faith put above reasonable debate. It may be that the UK Supreme Court will, in time, turn to precisely this issue.