Monday was an unexpected victory. Not, it has to be said, a victory for journalism or free speech, but a significant victory nonetheless for Julian Assange and his family.
The findings of Judge Baraitser in her decision not to extradite:
1. Finds that the 2003 Extradition Act governs and not the US/UK Extradition treaty. Assange is therefore not protected against political persecution.
2. Considers whether alleged offences in the extradition request are offences in both the US and the UK. Finds that Assange’s conduct went beyond that of a typical journalist by allegedly assisting Chelsea Manning with cracking a password.
3. Notes that Assange encouraged people to join the CIA – finds that this is beyond the role of investigative journalism.
4. Finds that “unfettered discretion” to publish freely is not covered by free speech laws. Cites an article from The Guardian which is critical of Assange.
5. Finds that US security officials made threatening comments about Assange, but finds insufficient evidence that prosecutors were pressurised by the Trump administration. Cites favourable comments made by Donald Trump about WikiLeaks.
6. Finds evidence alleging a US conspiracy to poison or kidnap Assange while in the Ecuadorian embassy inadmissible given the UC Global case (which is investigating these and similar claims) is currently ongoing in Spain.
7. Finds that the “inevitable impact” that extradition will have on Assange’s partner and and family is “sadly nothing out of the ordinary in the context of extradition proceedings.”
8. Finds that the US has good procedures in place to establish an impartial jury – even in Virginia, where the US National Security apparatus is based.
9. Finds “no evidence” that that the US DoJ wants to punish Assange as harshly as possible, and “no foundation” for the defence submission that evidence given by Chelsea Manning was a result of her having been subjected to torture.
10. Finds “no reason to doubt” that the usual procedural protections available in the US will be applied to the trial of Julian Assange to ensure that it is a free trial.
—> Rejects defence’s submission that Assange may not receive a fair trial in US <—
11. Finds that “a US court will properly consider Assange’s right to free speech”, although he would likely not be protected by the First Amendment.
12. Finds that “notwithstanding the strong and constant support he receives from family and friends, Assange has remained either severely or moderately clinically depressed throughout his detention at Belmarsh”, and is at risk of suicide.
13. Finds that “there are entries in the notes that indicate a much better mood at times”, but that “the overall impression” is of a “depressed and sometimes despairing man who is genuinely fearful about his future.”
14. Finds that there is a real risk of “Special Administrative Measures” (SAMs) being applied to Assange in a US prison, based on statements by Mike Pompeo describing WikiLeaks as a “hostile non-state intelligence service”, and a 2017 memo indicating that the US views WikiLeaks as an “ongoing threat to [its] national security”.
15. Finds that, if detained subject to the full restrictions of SAMs, “Assange will be housed in conditions of significant isolation”, which are “likely to have a deleterious impact on [his] mental health.”
16. Finds that “Assange has the intellect to circumvent suicide prevention measures”, and that, “faced with conditions of near-total isolation… I am satisfied that the procedures won’t prevent suicide.”
17. Considering the overall risk to Assange’s mental health and well-being, in particular the risk of suicide, the judge finds that a decision to extradite Assange would be “unacceptably oppressive”.
—> Judge therefore decides to BLOCK extradition request <—
Basically, District Judge Baraitser took the path of least resistance and followed the prosecution line to the letter. According to legal opinion I’ve sampled, this is not all that surprising in the context of a first instance extradition decision. There is apparently a strong presumption that the requesting state is behaving reasonably, and few expected arguments about the political nature of the US prosecution to pass muster at this stage of the process. Likewise arguments about the compatibility of the domestic Extradition Act (which is UK legislation) and the US-UK extradition treaty. These are matters more likely to be considered by the Supreme Court, not a magistrate in a district court. Nonetheless, the statements in the ruling about what does and does not constitute valid journalistic behaviour are deeply troubling, as is the fact that no scope has been afforded for substantive argument on these issues *whatsoever* in the proceedings. Baraitser’s argument that Assange’s fundamental rights would be protected in a US court, even while he is subject to prosecution under the Espionage Act, seems delusional at best. The one plus side is that she appears to have accepted the defence medical case at its strongest, which is what ended up saving the day.
Statement by Noam Chomsky:
“We can celebrate the fact that Assange won’t be sent to the barbaric US incarceration system, but the rest was a disaster.”“The verdict was a gift to the Biden administration. They will not have to bear the onus of a trial that would be an international scandal.”“Assange is dismissed as mentally ill. The verdict gives a judicial imprimatur to the US government charges, no matter how ludicrous they are and how thoroughly they were refuted by defence witnesses.”“That grants license to use them next time the government wants to silence someone who is informing the public about state crimes that authorities would like to conceal.”
Yanis Varoufakis also expressed contempt for the ruling and attacked the judge’s language, explaining why he himself, or anyone, would face mental anguish and suicidal thoughts if subjected to the years of punishment that Assange has faced, with the added prospect of a further 175 years in a US supermax. It is also curious, as Varoufakis and the interviewer point out, that Baraitser effectively took the side of the Trump administration over the Obama administration, the New York Times, the Washington Post and The Guardian. The latter are no friends of Assange, but at least have been willing to condemn this insane assault on press freedom:
Update: On Wednesday the decision was made to deny Julian Assange bail and send him back to Belmarsh. As Alex Nunns put it:
“Vindictive, cruel and harmful. Julian Assange has already spent 15 months in Belmarsh purely waiting – serving no sentence and charged with no crime here. Now he’ll be imprisoned for perhaps another year or two waiting for the US to appeal. It’s disgusting.”
The point about “serving no sentence” is key. Assange has already served his onerous and injurious 50-week sentence for bail violation. That came to an end in September 2019, and was in itself a joke*. Since then, he’s been serving time for no crime — or more accurately, been spending 23 hours a day in solitary confinement for no crime.
The editor of WikiLeaks responds:
To cut a long story short, the prosecution’s argument today was that Assange presented a flight risk, apparently evidenced by his decision to abscond to the Ecuadorian embassy in 2012, and the assistance he offered Edward Snowden in escaping from Hong Kong to Russia in 2013. They argued that he might flee to the Mexican embassy, given the offer on Monday by the President of Mexico, Andrés Manuel López Obrador, to grant Assange asylum. They also argued that the Covid crisis in Belmarsh Prison has been exaggerated by the defence. The defence argued that the circumstances are materially different to those prevailing in 2012. A court has ruled in Assange’s favour, he now has a partner and children in London to return to, and he’s no longer at risk of being extradited to Sweden and then rendered by stealth to the United States. They claimed that fully half the inmates in his prison block currently have, or have previously contracted, Covid-19, and suggest fitting Assange with an electronic tag and placing him under house arrest with his family. The judge found in favour of the prosecution, repeating US talking points about Snowden, and averring that Assange has “huge support networks should he again choose to go to ground” (i.e. skip bail). As Glenn Greenwald pointed out in response:
“There are no charges pending against Julian Assange in the UK. A UK judge denied the US’s request to extradite him, the only place where charges are pending.”“Despite this, the judge just ruled he must remain imprisoned – in a COVID-ridden high-security prison – while US appeals.”
It should be noted that Reporters Without Borders, Amnesty International, the American Civil Liberties Union, the UN Special Rapporteur on Torture, the UN Working Group on Arbitrary Detention, and the UK’s National Union of Journalists, have all condemned the US attempt to extradite Assange, and the role of the UK judiciary in indulging this thuggish onslaught.
*I recall people mocking the situation at the time. Belmarsh is Britain’s Guantánamo, and a common joke depicted Julian Assange inside the prison asking a fellow inmate what his crime was. “Blowing up a kindergarten”, the inmate replies. “So what are you in for?” “Skipping bail”, replies Julian. It would be funny were it not so bleak.