The High Court of England is presently considering whether Julian Assange can be granted leave to appeal against an extradition decision made in 2022 by the then UK Home Secretary, Priti Patel. Assange has been in the high-security Belmarsh Prison since 2019. He had previously spent seven years in the Ecuadorian embassy in London while trying to seek asylum in the South American country. At the court hearing which began this Tuesday, Assange’s legal team contended that the US’s prosecution bid is ‘politically motivated’. His legal team argues that he faces the risk of ‘flagrant denial of justice’ if tried in the US, and that Assange is being prosecuted for ‘ordinary journalistic practice’. The bid to convict him amounts to ‘state retaliation’, his lawyers say.

Julian Assange, the journalist and publisher of WikiLeaks, has been indicted on 17 charges of espionage and one charge of computer misuse over his website’s publication of classified US documents. Charged with ‘espionage’, Assange faces a jail term of up to 175 years. According to Jamel Jaffer, director of the Knight First Amendment Institute at Columbia University:

‘The charges alone seek to criminalise the process of journalism… In this era, when far too much information is classified in the United States, we rely on reporters to pry it out and let citizens know what their government is doing in secret.’

Assange’s legal battle began in 2010, when WikiLeaks disclosed confidential military files from the wars in Iraq and Afghanistan, including a video of a 2007 Apache helicopter attack by American forces in Iraq that killed 11 innocent civilians, including two Reuters journalists. In 2021, a UK judge ruled that while the US had shown it had a legitimate criminal case against Assange, the journalist could not be transferred because of concerns for his mental health. That was a momentous decision, not just because Assange’s last-minute appeal to avoid deportation succeeded, but for its freedom of the press ramifications. As stated by Amnesty International Australia (AIA):

‘Julian Assange’s publication of disclosed documents as part of his work with Wikileaks mirrors conduct that investigative journalists undertake regularly in their professional capacity. US prosecution of Julian Assange on espionage charges for acts of journalism will intensify the chilling effect on global media, leading journalists to self-censor from fear of prosecution.’

On June 17, 2022, the United Kingdom Home Secretary, Priti Patel, confirmed that she had approved the extradition of Julian Assange to the United States. The extradition decision has unleashed demands by protestors that Assange be freed from Belmarsh Prison, where he has been kept since April 2019. The protestors maintain that Assange is a journalist and publisher and that, in publishing documents that reveal America’s unsavoury involvement in the wars in Iraq and Afghanistan, he has disclosed instances of war crimes, corruption, and wrongdoings. For his supporters, his continued incarceration is a frontal attack on press freedom. As expected, the fight to free Assange is led by his wife, Stella Moris. They were married while he was in prison and they share two sons. Their efforts are also supported by his brother, Gabriel Shipton, and his father, Richard Assange.

Assange is the co-founder of WikiLeaks, which was awarded the Walkley Award for Most Outstanding Contribution to Journalism in 2011, an annual prize to reward excellence in Australian journalism, in recognition of the impact of WikiLeaks’ actions on public interest journalism by assisting whistle-blowers to tell their stories. On October 22, 2010, he released via WikiLeaks 391,832 documents, incriminating America’s involvement in the wars in Iraq and Afghanistan. As mentioned above, this included abuses by American soldiers and a video of an American helicopter attack in Iraq on suspected militants, who were unarmed civilians and journalists. The files, posted to the internet, were provided by Chelsea Manning, an Army private, and handed over to WikiLeaks. Manning served seven years in jail but was amnestied by President Barack Obama in 2017. Yet, WikiLeaks’ publisher, Julian Assange, who himself did not appropriate these documents, is still languishing in jail.

Assange fled to the Ecuadorean Embassy in June 2012 to avoid capture and extradition to Sweden where he had been accused of sexual assault – a charge since dropped by the Swedish authorities. Assange was evicted from the Embassy in April 2019, and he is now held in the UK’s notorious Belmarsh Prison, fighting extradition to the United States where he could spend up to 175 years in jail for computer hacking and espionage. During the extradition hearings, representatives of the United States argued that the publication of the documents endangered the lives of people, especially those who collaborated with the American military.

Assange’s case is testing the limits and scope of freedom of the press. An earlier event in American history may inform the debate about the alleged activities of Julian Assange: the Pentagon Papers controversy of the 1960s. The Pentagon Papers, detailing the role of the United States in Indochina until May 1968, were leaked by Daniel Ellsberg to the New York Times which started to publish extracts from the Papers. Following orders by lower courts to suspend publication of the Papers, the American Supreme Court, in New York Times Co. v. United States, a 6-3 decision, allowed the resumption of the publication. Associate Justice William Douglas characterised the leaked documents ‘all history, not future events’, but nevertheless important to the Vietnam debates in Congress. He relevantly stated that, ‘The press was protected so that it could bare the secrets of government and inform the people.’

Assange’s case, however, is not straightforward. The documents were obtained by hacking government computers and, subsequently, WikiLeaks published them. So, the debate is whether a publisher has a right to publish materials that have been illegally obtained by someone else. Is Douglas’s expectation that people have a right to be informed reasonable in these circumstances? Is there a higher principle, which allows, or even requires, the publication of documents, which evidence atrocities committed by American personnel in the Middle Eastern wars? What, if any, are the legal rights of whistle-blowers and their publishers?

One thing is certain. Assange’s continued incarceration does not serve its purpose anymore. This is because his predicament no longer assists those who want to keep this information, published by WikiLeaks, out of the public forum. Indeed, in keeping him in Belmarsh Prison, Assange’s quest to be released is constantly in the news, thereby reminding people of the importance of freedom of the press in the maintenance of a free, democratic society. In these circumstances, one wonders whether a termination of the legal proceedings would have more effectively served the public interest. His continuing incarceration is doing more to promote a free press than any bill of rights can possibly achieve. For years, people across the globe have called for Assange to be set free and returned to his native Australia.

Therefore, the Australian government intends to continue making consular assistance available to Assange and promises to quietly make representations to the governments of the United Kingdom and the United States. Just last week, the Australian Parliament passed a motion calling on the US and UK to stop their pursuit of Assange. Australian MPs, who are often rightfully considered to be no friends of freedom of speech, surprisingly voted 86-42 that Assange should be allowed to come home. This includes the Prime Minister, who is actively working for the complete obliteration of free speech via the notorious Misinformation and Disinformation Bill.

On the first day of the High Court hearing, Edward Fitzgerald KC, one of Assange’s lawyers, told UK judges Dame Victoria Sharp and Mr Justice Johnson that his client is being subject to an ‘unjustified interference in freedom of speech’. He also argued that Assange’s prosecution is for his engagement ‘in the ordinary journalistic practice of obtaining and publishing classified information – information that is both true and of obvious and important public interest’.

‘The prosecution is politically motivated. Assange was exposing serious criminality. He is being prosecuted for undertaking the ordinary journalistic practice of obtaining and publishing classified information that is both true and of public interest’, Mr Fitzgerald said.

Mark Summers KC, another lawyer acting for Assange, argued before the court that the US is merely seeking retribution for his client’s political opinions, one of many bars to extradition from the UK as set out by the Crown Prosecution Service (‘CPS’). ‘This is a paradigm example of state retaliation for the expression of political opinion,’ Mr Summers argued. In written submissions, Mr Summers and Mr Fitzgerald added: ‘The evidence showed that the US was prepared to go to any lengths, including misusing its own criminal justice system, to sustain impunity for US officials in respect of the torture/war crimes … and to suppress those actors and courts willing and prepared to try to bring those crimes to account.’

If these defence lawyers fail to convince the court, Assange must be extradited within 28 days, unless his legal team can convince the European Court of Human Rights (ECHR) to temporarily stop the extradition through a so-called ‘Rule 39’ order. Such order is based on a very high threshold established by judges of the ECHR, that there would be ‘an imminent risk of irreparable damage’ to Assange’s human rights, which of course is one of the arguments the High Court would have rejected.

Assange’s lawyers also want these High Court judges to reconsider allegations that the CIA and other US officials have already developed plans to kidnap or assassinate their client while he was in the Ecuadorian Embassy. Assange, they say, is being at ‘a real risk of further extrajudicial actions … by the CIA or other agencies’, a subtle way of claiming that their client could be killed at any moment or at the very least subject to some serious harm beyond a criminal sanction after a fair trial. These allegations remain speculation. ‘There was a plot to kidnap Assange, to rendition him to America, or else straightforwardly murder him,’ Mr Summers claimed. According to the BBC’s legal commentator Dominic Casciani, ‘Their allegation – not evidentially tested – is that the CIA plotted to kill Assange during the seven years he took refuge inside Ecuador’s London embassy, from 2012 to 2019.’

If there is one thing these last four years have taught us is that we should never trust government authorities to hide information from the public. For years, people across the globe have called for Julian Assange to be returned to his native country Australia. Detained for the past eleven years in the UK, psychologically damaged, and now isolated in a maximum-security jail for the past two-and-a-half years, it is quite clear that Assange has suffered enough, and so President Biden’s Justice Department should drop these charges against him. Moreover, the controversy about his extradition to the US is a constant reminder of the need to protect whistle-blowers, willing to disclose the corruption and dastardly dealings in society. Hence, US Associate Justice Douglas’s inspirational statement that the press should be protected ‘so that it could bare the secrets of government and inform the people’, should guide politicians who may influence the outcome of this case.

We strongly believe that it is time for the US government to drop all these charges against Assange and allow him to return to Australia.

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Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. 

Zimmermann and Moens are the authors of ‘The Unlucky Country’ (Locke Press, 2024), available at https://lockepress.com/product/the-unlucky-country/

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