Assange cannot be extradited, but free speech arguments dismissed — an extended look

21 January 2021 by Sapan Maini-Thompson

In The Government of the United States v Julian Assange (2021), the District Judge sitting at Westminster Magistrates’ Court discharged the American extradition request against the founder of WikiLeaks because there is a substantial risk that he would commit suicide. Given Julian Assange’s political notoriety as an avowed whistle-blower, however, the judgment is significant for its dismissal of the defence’s free speech arguments. This article analyses why these human rights submissions were unsuccessful.

The Criminal Charges against Assange

In December 2017, Assange was charged with a conspiracy to commit unlawful computer intrusion contrary to Title 18 of the US Code. Assange is alleged to have conspired with Chelsea Manning to steal classified material. Manning was previously convicted by court martial in July 2013 for violations of the Espionage Act 1917 and other related offences.

Subsequently, in May 2019, a federal grand jury returned a superseding indictment containing eighteen counts alleging further offences related to the obtaining, receiving and disclosure of “National Defense Information” (contrary to Title 18).

The information Assange is alleged to have unlawfully acquired and published relates to the illegal actions of the United States’ military and intelligence agencies during the wars in Afghanistan and Iraq, as well as the abusive treatment of detainees at Guantanamo Bay. An extradition request was submitted to the British government in June 2019.

The Grounds of Objection to Extradition

The submissions made by the defence were wide-ranging, highly intricate, and mostly unsuccessful. In addition to the jurisdictional and free speech arguments discussed here, the defence also contended the request constituted an abuse of process and that there were statutory bars to Assange’s extradition under the Extradition Act (EA) 2003 on the basis that the extradition was politically motivated (s.81) and due to the passage of time (s.82). The Court also rejected submissions under s.87 EA 2003 that the US criminal justice system would fail in safeguarding Assange’s rights under Article 6, Article 7 and Article 10 of the ECHR.

The defence was successful, however, in arguing that extradition would constitute oppression due to health, contrary to s.91 EA.

The UK-US Extradition Treaty 2003

The defence’s principal submission was that Article 4 of the UK-US extradition treaty 2003 prohibits extradition for a “political offence” and the Court therefore lacked the jurisdiction to hear this case. This argument engages the anterior question of which legal regime governs the extradition arrangement between the UK and the US.

Assange is said to be charged with “political offences” because most of the criminal charges are brought under the Espionage Act 1917. The “defining legal characteristic” of all 18 offences “is an intention to obtain or disclose US government state secrets in a manner that was damaging to the security of the government” [37]. According to international case-law and academic commentary, espionage is to be considered a “purely political offence” because it is “by definition a crime committed against the political order of the state” [37]. The defence argued that an extradition request made in breach of the 2003 treaty would violate the rule of law and render Assange’s detention both arbitrary and inconsistent with ECHR Article 5.

As mentioned previously, the veracity of this proposition turned on the identification of the correct governing regime. The US submitted the Extradition Act 2003 (EA 2003) provides a self-contained regime for extradition.

Judgment

The Court ruled the defence’s reliance upon the 2003 treaty is constitutionally flawed. In JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990], confirmed in the extradition context in Norris v SSHD [2006], it was established that the provisions of a treaty do not in themselves confer rights on an individual. Therefore, the 2003 treaty confered no personal rights upon Assange. This was buttressed by the fact that when Parliament enacted the EA 2003, it clearly removed the political offences bar which had been available in previous extradition legislation from 1870 to 1989. [50]

Dual Criminality and the Extradition Act 2003

The second objection raised by the defence was that the allegations against Assange do not meet the “dual criminality” requirements of s.137 of the EA 2003. In the submission of the US, Assange’s alleged conduct would amount to offences under the following English statutes: s.1 Official Secrets Act (OSA) 1911, s.7 OSA 1920, s.1, s.2, s.5 and s.7 OSA 1989 and s.1 Computer Misuse Act 1990, in conjunction with the offence of conspiracy under s.1 Criminal Law Act (CLA) 1977. These charges are listed at para [90] of the judgment.

Judgment

For the purposes of adjudication, District Judge Baraitser classified the charges against Assange into three main strands corresponding with equivalent offences under English criminal law. The first strand concerned Assange’s alleged involvement in a conspiracy with Ms Manning and other computer hackers to obtain unauthorised access to a computer. The second strand related to Assange aiding and abetting Ms Manning to disclose to him, unlawfully, the diplomatic cables, the Iraq rules of engagement and detainee assessment briefs. The third strand related to Assange publishing documents on the WikiLeaks website.

In the view of the Court, “Mr Assange’s alleged activities went beyond the mere encouragement of a whistle-blower.” [96] In particular, this was because it was alleged that Assange agreed to help Ms Manning decipher an alphanumeric code to enable her to avoid detection for unauthorised access to a secret computer account. This separated his activity from that of an ordinary investigative journalist. [99]

Criminal Law Obligations and Journalistic Conduct

The Court further held these alleged offences were compatible with Article 10. In Regina v Shayler [2002], the House of Lords considered Article 10 in the context of s.1(1) of the OSA 1989. David Shayler, a former member of the Security Services, was prosecuted for disclosing classified documents to journalists. He did so in the belief that he was exposing unlawfulness and procedural irregularities in the service.

Lord Bingham held that, notwithstanding the role of the press in exposing abuses and miscarriages of justice, the restrictions imposed by the OSA were directed to legitimate objectives under Article 10(2), including the need for the security and intelligence services to keep information secret. Further, there was neither a public interest nor a national interest defence available to a charge under this provision.

The defence sought to distinguish Assange’s conduct by arguing that he was engaged in the “gathering of information” — the criminalisation of which “offends the core notion of Article 10.” [115] However, the Judge relied on the reasoning in Brambilla and others v. Italy [2016], in which three journalists were convicted of offences after intercepting carabinieri radio communications to obtain information on crime scenes for the purposes of reporting, noting that a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that the offence was committed during the performance of journalistic functions [116].

Furthermore, the scheme of the OSA would be undermined “if the disclosures made by a Crown servant, in this case by Ms. Manning to Mr. Assange, were treated differently to the disclosures of her co-conspirator.” [118] Significantly, the Judge held that “had Mr. Assange decided not to assist Ms. Manning to take the information in the various ways described above, and merely received it from her, then the Article 10 considerations would be different.” [118]

Comment

This is an intriguing hypothetical because it suggests but for Assange’s alleged involvement in the theft of the material, his position would have been comparable to that of other media outlets, which legitimately exercised their press freedoms in publishing the leaked information (albeit on a redacted basis). Nevertheless, for reasons explored below, his status would ultimately have remained distinguished.

Responsible Journalism vs Data Dumps

The Court’s consideration of the third strand – the publication of documents on the WikiLeaks website – relates to a wider debate about the scope of a journalist’s ethical obligations when using the internet. Importantly, the publishing charges were limited to those documents which named individual informants. S.5 OSA 1989 expressly applies to individuals, which includes publishers, who are not the original leaker of the information. The US submitted that Assange knew the “unconsidered and indiscriminate” dissemination of informants’ names could endanger their lives. [123]

The defence argued that even if there was a risk of damage, Article 10 would nevertheless sanction Assange’s disclosures. This is because “the risk of harm to a small number of sources, described by the defence as “unintentional, small and unsubstantiated”, would be weighted against the risk of harm to “millions … potentially subject to global-scale ongoing war crimes and torture”. [80]

It was held that Assange’s disclosure was not protected by Article 10. The Court distinguished between “responsible journalism” and a “data dump”, drawing on decisions in Stoll v Switzerland (2008) and Gîrleanu v Romania (2019), to rule that Assange’s decision to leak the names of informants was not responsible journalism permitted by Article 10. This would vest in him “the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech.” [131] The Court emphasised free speech is not a ‘trump card’ even where matters of serious public concern are disclosed (Stoll). [135] Overall, this meant the provisions of the OSA 1989, insofar as they are used “to prosecute the disclosure of the names of informants, are necessary in a democratic society in the interests of national security.” [137]

Comment

From a theoretical perspective, the Court’s dismissal of the defence argument entailed a rejection of a blunt utilitarian approach to the exercise of free speech rights. No matter how important the cause, a self-appointed individual may not cite free speech as a defence to compromising the rights-based integrity of another person. The internet does not release a journalist from their obligation to respect the informational rights of others.

The Right to Truth/Necessity

The Court also dismissed the defence’s submission that the public has a “right to truth” about the occurrence of human rights violations. This is because it was held not to be a legal rule recognised in either international or domestic law.

Assange’s defence that it was “necessary” to publish the information to prevent “danger to life” and “serious injury” was rejected. Most importantly, it was held that Assange had not discharged the evidential burden of necessity. Much like Mr Shayler, “Mr Assange did not know the content of the material until it was in his possession and so cannot argue that he obtained it in order to prevent harm to others.” [147] Similarly, in relation to the publishing charges, he could not provide evidence of an “individual incident” from which he sought to protect the public.

Comment

The defence submissions on necessity echo the 2003 prosecution of Katharine Gun, who argued it was necessary for her to breach the Official Secrets Act to stop an illegal war against Iraq. In any case, the US was correct to observe the defence sought to “elide the defence of necessity with a public interest defence”, which, as confirmed in Shayler does not exist under the OSA 1989 [140].

The absence of any kind of public interest defence, however, raises serious questions about whether there ought to be one. In its 2020 report on the Protection of Official Data, the Law Commission recommended the creation of statutory public interest defence because it could not “be certain that the current legislative scheme, in the OSA 1989, affords adequate protection to Article 10 rights under the ECHR”. Significantly, among the Five Eyes nations, it is only the UK and the US which make no provision for any kind of public interest defence. Given the salience of freedom of information to democracy, reform is surely in order.

Conclusion

Assange’s free speech arguments were unsuccessful in discharging the American extradition request because there exist no defences for breaches of the Official Secrets Act. The scope of protection afforded to “responsible journalism” by Article 10 also corresponds with the lawfulness of a journalist’s conduct. The Court could not reasonably have reached another conclusion. An American appeal is pending.

Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini