Attached is a review of the May 20th High Court decision by Chip Gibbons of Defending Rights and Dissent as published in the recent edition of Jacobin.

Chip does a great job of summarizing the situation and I encourage you to read the article.

At the March hearing, the judges had requested certain assurances pertaining to Assange’s rights to freedom of speech and protection from the death penalty.

The U.S. State Dept. provided the following assurances on freedom of speech:

“ASSANGE will not be prejudiced by reason of his nationality with respect to which defenses he may seek to raise at trial and at sentencing. Specifically, if extradited, ASSANGE will have the ability to raise and seek to rely upon at trial (which includes any sentencing hearing) the rights and protections given under the First Amendment of the Constitution of the United States. A decision as to the applicability of the First Amendment is exclusively within the purview of the U.S. Courts.”

Clearly, the above is no guarantee that Assange will be accorded the right of freedom of speech and the judges allowed the appeal because of the obvious unsatisfactory nature of these assurances.  The assurance against the use of the death penalty was accepted by the defense and the court.

The use of the term “nationality” is interesting, Nationality is based on one’s country of birth, and many foreign nationals are U.S. citizens and have full citizenship rights.  As the lawyers for the U.S. pointed out, Assange wouldn’t be discriminated against because of his nationality; however, non-citizens do not have citizenship rights!

“UK lawyers, representing the United States, pedantically lectured the court on the distinction between citizenship and nationality. Any deprivation of Assange’s First Amendment rights would be due not to his nationality, but his citizenship (i.e., an Australian-born US citizen could not be deprived of First Amendment rights, but any noncitizen may be). One of the UK government lawyers representing the United States stated Assange would not be “prejudiced for reason of his nationality, but because as a matter of law he is a foreigner operating on foreign soil.”

Hopefully at the appeal hearing, the judges won't be pedantic about the distinction between nationality and citizenship because the judges at the March hearing clearly made a mistake when they asked for assurances referring to nationality rather than citizenship - or did they???

Bottomline, this has now come down to the issue of free speech and the right of a foreign journalist/publisher/news-gatherer working from a foreign country to publish secrets of the U.S.   Does the U.K. really want to greenlight this situation as a freedom of the press precedent?  

No news yet as to when the next proceedings will take place.

Peace and solidarity,

Frank Lawrence

Assange Won a Victory, but the Fight Isn’t Over

BY
CHIP GIBBONS

The imprisoned journalist received a rare legal win when the UK High
Court ruled he can appeal his extradition to the US. Yet the fight for
Assange’s freedom — and the future of global press freedom — is far
from over.

On Monday, May 20, 2024, the British High Court granted Julian Assange his first legal victory in four
years. The court found that the WikiLeaks founder could appeal his extradition to the United States
on the basis that he may be denied free expression rights and face discrimination if tried there. In the
UK system, leave must be granted to appeal. Courts have previously refused to grant Assange leave to
appeal on key issues.
Assange remains locked up in the notorious Belmarsh Prison. And while he’s been granted the right to
appeal on two narrow grounds, it’s still possible the court could rule against him. Assange still could
be extradited — and press freedom hangs in the balance.

Exposing War Crimes

The US war on WikiLeaks, its sources, and its founder is a long, sordid affair. It entered its current
phase on April 11, 2019, when British police arrested Assange. The United States then unsealed a series
of indictments against him and sought his extradition. Ultimately, Assange would be charged with
seventeen counts under the Espionage Act and one count of conspiring to violate the Computer Fraud
and Abuse Act. All of the charges stem from WikiLeaks’ receipt and publication of classified
documents from whistleblower Chelsea Manning.
Assange’s attorneys argued that the United States was clearly seeking to extradite Assange for a
political offense and that his extradition was barred under British law. In 2021, a British judge rejected
these arguments. Nonetheless, the judge blocked Assange’s extradition to the United States due to the
prison conditions he would likely face. The United States, represented by the UK government,
appealed this decision. They also offered diplomatic assurances about Assange’s potential prison
conditions. Amnesty International called the assurances “inherently unreliable.” But UK courts
accepted the assurances, overturned the judge’s ruling, and denied Assange the right to appeal.
Assange’s attorneys then sought to appeal the parts of the original decision that were adverse to them.
They presented nine separate grounds for appeal. At the heart of the defense’s legal arguments was the
assertion that Assange was a journalist who published information about state criminality. Such
actions were in the public interest. Prosecuting a journalist for his work exposing war crimes and
abuses of power is a form of government retaliation that violates free expression rights.
The High Court rejected the overwhelming majority of these grounds, ruling that the bulk of charges
against Assange dealt with ordinary crimes with no relationship to free expression rights. For the
limited number of charges the High Court found touched on free expression rights, the High Court
ruled there was not a significant public interest in the publications to prohibit Assange’s prosecutions.
Prosecuting Assange for exposing war crimes therefore did not violate Assange’s right to free
expression under Article 10 of the European Convention on Human Rights, which the court found to
be similar to the US First Amendment.
In a particularly disturbing part of the decision, the High Court ruled Assange’s lawyers could not
introduce additional evidence about the CIA plot to kill the journalist — not because they found such a
plot inconceivable but because the High Court believes if Assange were extradited to the United States,
the CIA would no longer have reason to assassinate him.
The decision was not a total defeat for Assange. The United States failed to provide an assurance not to
seek the death penalty. Although Assange was not charged with an offense that carried the death
penalty, his lawyers argued he could be. The court found these concerns to be persuasive and granted
leave to appeal on this point.

Additionally, one of the prosecutors in the case, Gordon Kromberg, stated the United States might
argue that as a foreigner Assange had no First Amendment rights. The UK High Court found that if the
US government succeeded in this argument, Assange would face discrimination because of his
nationality and be deprived of his right to free expression, in violation of Article 10 of the European
Convention on Human Rights. As a result, Assange could also appeal.
The High Court gave the United States an avenue to avoid the appeal. If the United States offered
assurances that they would not seek the death penalty against Assange, that Assange would not face
discrimination due to his nationality, and that Assange could rely on the First Amendment, Assange
would lose his right to appeal. The High Court was taking the ominous and highly unusual step of
telegraphing to the United States what to say to extradite Assange.
During past phases of Assange’s extradition proceedings, UK courts maintained that US assurances
had to be taken at face value and that the defense could not challenge them. This time, the UK High
Court announced it would accept both a written challenge to the assurances and hold a hearing on
whether they were sufficient.
The United States waited until the April 16 deadline to submit its assurances. The first assurance was a
standard death penalty assurance, a routine diplomatic matter given that most of the world does not
share the United States’ belief in the death penalty. The second assurance read:

ASSANGE will not be prejudiced by reason of his nationality with respect to which
defenses he may seek to raise at trial and at sentencing. Specifically, if extradited,
ASSANGE will have the ability to raise and seek to rely upon at trial (which includes any
sentencing hearing) the rights and protections given under the First Amendment of the
Constitution of the United States. A decision as to the applicability of the First
Amendment is exclusively within the purview of the U.S. Courts.

FirstAmendment Rights

Going into the May 20 hearing, a sense of pessimism pervaded for Assange’s team. Given the judge’s
dismal assessment of Assange’s rights, I felt certain that this was likely to be the end of the road for

Assange’s case in the UK legal system. Everyone I spoke to who had followed the case closely, either as
journalists, activists, or human rights advocates, also believed Assange’s prospects were bleak.
At the outset of the hearing, Assange’s defense announced they fully accepted the US assurance on the
death penalty, but the remaining assurance was insufficient. The High Court had asked for an
assurance that Assange could rely on the First Amendment. The United States instead said Assange
could “seek to rely” on the First Amendment. The defense also noted that diplomatic assurances in
extradition typically include promises to refrain from doing something, such as declining to seek the
death penalty or require bail. In its assurance, the United States made no promises that the
Department of Justice would not argue Assange lacked First Amendment rights on the basis of his
nationality. As the defense told the judges, “Mr Kromberg has caused the concern and done nothing to
allay it.”
Relying on the expert opinion of Paul Grimm, a former US federal judge, lawyers for Assange argued
that even if prosecutors did not argue Assange lacked First Amendment rights due to his nationality, a
court could independently make this ruling. They also relied on Grimm to argue that the First
Amendment protects more than just publishing, it protects newsgathering. This seemed meant to
counter the High Court’s previous finding that only a handful of charges had any relationship to free
expression rights.
UK lawyers, representing the United States, pedantically lectured the court on the distinction between
citizenship and nationality. Any deprivation of Assange’s First Amendment rights would be due not to
his nationality, but his citizenship (i.e., an Australian-born US citizen could not be deprived of First
Amendment rights, but any noncitizen may be). One of the UK government lawyers representing the
United States stated Assange would not be “prejudiced for reason of his nationality, but because as a
matter of law he is a foreigner operating on foreign soil.”
After roughly an hour and half of arguments, Assange’s lawyers and UK prosecutors representing the
US government concluded their arguments. The judges hearing the case, Victoria Sharp and Jeremy
Johnson, began whispering to each other. Part of their comments could be heard on a hot mic, but the
only word I could make out was “discriminatory.” Sharp then announced the court would adjourn for
ten minutes, then the judges would let us know “where we are.”