By Benjamin Wild 9BR
And, just like that, it was all over.
14 years of efforts by the UK, US and Sweden to have Mr Assange extradited to face prosecution have resulted in a plea to a single charge of espionage – to which he has been sentenced to time served.
How did we get here? And what might have been the prompt for the US to accept what seems like a very un-Trumpian ‘bad deal’? This article hopes to shed some light.
Julian’s Calendar – How We Came to Be Where We are
An order to extradite Mr Assange to Sweden was first made back on 24 February 2011. Permission to appeal was dismissed in November 2011 and then May 2012.
Mr Assange fled to the Ecuadorian Embassy soon after and the offences for which he was charged in Sweden (sexual molestation) became time barred in August 2015. The rape allegations were discontinued in May 2017.
Nonetheless, the US requested Mr Assange’s extradition in December 2018 for conspiring (in 2010-2011) to unlawfully access computers to obtain classified information. 18 counts of espionage and computer hacking were indicted by the US in June 2019. Mr Assange’s first US extradition hearing started on 24 February 2020.
Mr Assange initially convinced the courts he should not be extradited due to being a suicide risk given US prison conditions. However, the CPS – armed with US assurances as to the location and conditions of Mr Assange’s incarceration – appealed successfully.
From here, Mr Assange was refused permission to appeal by the Supreme Court in March 2022, and again in June 2023.
However, on 26 March 2024, came a crucial decision. The High Court ruled that, unless satisfactory assurances were provided by the US, leave to appeal would be granted on the grounds that Mr Assange might be prejudiced in a US criminal trial due to his nationality (and potentially consequent lack of First Amendment protection) and because of inadequate death penalty protection. Those assurances were provided; however the High Court was only partially convinced in its decision of 20 May 2024. The Court accepted the death penalty assurance. But it did not accept the assurances that Mr Assange would be able to raise a defence under the US Constitution’s First Amendment and that he would not be prejudiced on account of his nationality. Permission to appeal was therefore granted on these two grounds.
Soon after, Mr Assange agreed a deal with US authorities to plead guilty to a single espionage charge (conspiracy to violate the Espionage Act) in the US District Court in Saipan (a Pacific US Commonwealth island), after which the US would drop its extradition request. He entered his plea on 26 June 2024 and was sentenced to time served. The US dropped its extradition request, and on 28 June 2024, the High Court ordered the decision of the Secretary of State to extradite Mr Assange to be quashed.
The Art of The Deal: Why the US Said Yes
Why the change, indeed the climbdown, from the US wanting a wide-ranging 18-count prosecution to accepting a plea to a single charge? A win it certainly is for Assange; but it seems like a poor deal for the US.
The key may be in the subtleties of the ruling from 26 March 2024, which outlined the Court’s concerns and requests for assurances. That decision dealt with a full 9 grounds, finding only 3 of them (grounds iv), v) and ix)) to be arguable – grounds iv) and v) were then not met by adequate reassurances per the 20 May 2024 decision.
It is worth looking at grounds iv) and v) in a degree of detail to find our answer:
iv) Extradition being incompatible with Freedom of Expression rights – This ground argued that Mr Assange’s collaboration with Chelsea Manning would have been justified as an investigative journalistic act protected by Article 10 of the European Convention on Human Rights – so to extradite him for prosecution of said collaboration would be a breach of this right. Here the Court acknowledged freedom of expression is protected under the First Amendment to the US Constitution. It pointed out that Article 10 is a qualified right, and there have been cases in which journalists have been prosecuted compatibly with it. The Court ruled that it is not arguable that the extradition of Mr Assange would give rise to a real risk of a flagrant denial of his Article 10 rights. They observed that the leaks involved the publishing of names of specifically human intelligence sources, and that some harm (arrests, detention and forced removals) resulted from this. The balance fell against this being ‘responsible journalism’. So the Court felt that the First Amendment would provide adequate protection (even if Mr Assange’s appeal to it may not be successful given the Court’s observations on responsible journalism). However, their decision on Mr Assange being prejudiced due to his nationality is what saved this ground from being rendered unarguable.
v) Prejudiced by reason of nationality – rooted in section 81(b) of the Extradition Act 2003, this ground arose from statements by Mike Pompeo (then Director of the CIA) who stated that Mr Assange had no First Amendment freedoms because he is not a US citizen. Given Mr Assange’s near-certain reliance on the First Amendment’s protection of freedom of expression in any criminal trial, there was clearly a risk of prejudice in this protection being unavailable. While the Court dismissed the words of Mr Pompeo himself as irrelevant (not being expert evidence of the legal position), they accepted from the mouth of Assistant US Attorney and Federal Prosecutor Mr Gordon Kromberg that this was a tenable argument for the US prosecution team. The Court was not willing to take the risk that this argument would succeed. It allowed this ground in combination with iv) above.
It is in v) where the real political sensitivity lies. If the US were to provide full assurances of Mr Assange’s access to First Amendment protection, then a US criminal court would be bound by this decision. But in granting First Amendment rights to Mr Assange under those assurances, the criminal court would have to go behind not only the words of the then CIA director, but also the many influential figures (both in the legal and political fields) who would see the sense in those words. At the same time, if Mr Assange was granted this right, his chances of succeeding – and embarrassingly so – at trial would be increased. Moreover, cast-iron assurances of Mr Assange’s protection under the First Amendment would arguably not be something the US could provide without illegitimately removing this argument from the US prosecution team (because, for example, it is an entirely arguable point in law, as Mr Kromberg asserted). To do so in favour of a foreign national who, on one view, has compromised US national security, would be a political insensitivity too far.
So the US was faced with a choice between either granting too great an advantage to Mr Assange at trial in order to get him to trial in the first place, or accepting a guaranteed ‘win’ that avoids the indignity of providing a very American protection to a – some might say – very ‘un-American’ defendant.
The US chose the latter, and Mr Assange lives to leak another day.