The “Classified” Case of the USA v Julian Assange

Assange’s case can be a serious precedent for national security and the freedom of expression.
The “Classified” Case of the USA v Julian Assange
Julian AssangeJulian Assange & Martina Haris, Public domain, via Wikimedia Commons

On January 4, 2021, several people celebrated outside the Central Criminal Court in London after a British judge ruled in its 132-page judgement that WikiLeaks founder Julian Paul Assange should not be extradited to the United States.

The legal issues raised by Assange’s defence included the fact that, “[The] UK-US Extradition Treaty prohibits extradition for a political offence; the allegations do not meet the ‘dual criminality’; extradition would be oppressive by reason of the lapse of time; and because it would be unjust and oppressive by reason of Mr. Assange’s mental condition”, among others.

However, the judgement said, Assange has a “recurrent depressive disorder”, and he was likely to be imprisoned where procedures would not prevent him “from finding a way to commit suicide”, as the ground for thwarting the extradition bid.

Thus, Owen Jones claimed “This ruling by District Judge Vanessa Baraitser is a victory, albeit one not won on the principled grounds that should form the basis of opposing his extradition.” The US authorities are likely to appeal against the ruling.

So, what lies ahead for Assange and why did he end up in such a terrible scenario in the first place?

Who is Julian Assange?

Assange is a 49-year-old Australia-born computer programmer who founded the non-profit organization WikiLeaks in Iceland in 2006. WikiLeaks came to prominence in 2010 after they published US military logs from Iraq and Afghanistan, followed by US cable leaks later that year.

To his supporters, Assange is a heroic campaigner for truth; whereas to his critics, he is a publicity seeker.

In November 2007, Assange leaked the 238-page US Army manual from 2003 on “standard operating procedures” or “torture” for the Camp Delta prison in Guantanamo Bay, Cuba. WikiLeaks made international headlines in 2010, through a series of leaked documents.

In April 2010, they released a 39-minute long “Collateral Murder” video of a US Apache helicopter firing and killing a dozen Iraqis, including two Reuters journalists. Later, in July, together with several media outlets, such as the New York Times, WikiLeaks published more than 90,000 US military documents related to the Afghanistan War.

Months later, WikiLeaks published 391,832 documents related to the Iraq War. In November of 2010, WikiLeaks published US diplomatic cables, better known as the Cablegate scandal, which provided insights from more than 270 US embassies and consulates from around the world. On July 22, 2016, WikiLeaks released nearly 20,000 Democratic National Committee emails and on October 7, 2016, it released 2,000 emails from Clinton’s campaign manager John Podesta.

The 2010 leaks were the single largest in US military history, exposing huge civilian casualties. Daniel Ellsberg, a widely celebrated American whistle-blower, said Assange’s release of the Afghanistan and Iraq war logs were “comparable in importance” to the Pentagon Papers, a study on the US war in Vietnam which he had leaked in 1971.

Former US military personnel Chelsea Manning is alleged to have sent the information to Assange. Manning was sentenced to 35 years imprisonment in 2013, for violating majorly the Espionage Act of 1917, an “extraordinarily broad” law, which was enacted to deter any interference in US military operations and prevent individuals and groups from supporting enemies of the US.

Manning’s sentence was eventually commuted in the final days of the Obama administration.

The Charges against Assange

Assange was arrested by British police in April 2019, from Ecuador’s embassy in London, where he had been granted asylum since 2012 to avoid arrest and extradition after Sweden issued an international arrest warrant for him in November 2010 on allegations of rape, a charge which was later dropped.

In May 2019, he was sentenced to 50 weeks in jail for breaching his bail conditions. Interestingly, WikiLeaks had predicted that Assange would be expelled from the embassy, allegedly due to the leak of a collection of documents to an Ecuadorian legislator implicating President Lenín Moreno in a corruption scandal.

Therefore, Ecuador's position apropos Assange changed after President Rafael Correa was succeeded in office by Lenín Moreno.

In May 2019, the US charged Assange under the Espionage Act on 17 counts, for unlawfully obtaining and disclosing classified documents related to the national defence, along with one count of computer hacking for allegedly assisting Manning in accessing the classified documents.

Assange’s lawyers and a human rights expert say the case is politically motivated; claiming that he might not receive a fair trial in the US and that the US has all but convicted Assange in the public arena.

The International Bar Association’s Human Rights Institute (IBAHRI) stated that a potential extradition of Assange from the United Kingdom to the United States would be in contravention of Article 4(1) of the Extradition Treaty between the UK and US; would constitute a violation of freedom of expression; would set a dangerous precedent in the restriction of press freedom in the UK, US and in other countries; and would potentially subject him to an unfair trial in the US.

The IBAHRI also condemned UK treatment of Julian Assange in US extradition trial.

The UK is obligated, the IBAHRI said, under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, not to extradite an individual to a country where they could face persecution, ill-treatment or other violations of their human rights.”

What could happen to Assange?

The US administration led by former President Barack Obama refused to persecute Assange, fearing it may leave US news outlets such as the New York Times susceptible in the future. Later, Donald Trump allegedly offered to pardon Assange, provided he disclosed the source for the hacking of Democratic National Committee emails.

If Assange is extradited to the US and charged under the Espionage Act, he could face up to 175 years in jail. On the charge of computer intrusion, conviction could result into another gratuitous five years.

However, extradition between the UK and the US is rare.

In 2012, a request to extradite UK hacker Gary Mackinnon for hacking into US military databases was rejected. Similarly, the US refused to hand over the wife of a US intelligence officer accused of killing a British citizen due to dangerous driving. Moreover, in 2018, a UK High Court ruling blocked extradition of Lauri Love, a student accused of breaking into US government websites.

According to rights groups, Assange’s extradition and sentencing in the US, would be a serious threat to free-speech rights and to the work of investigative journalists around the world. The UK-based The Guardian said charges against Assange “undermine the foundations of democracy and press freedom.

Julia Hall, Amnesty International’s expert on human rights in Europe said that “Assange’s extradition to the US would set a chilling precedent for those who publish leaked or classified information.”

In December 2020, a UN expert asked US President Donald Trump to pardon Assange as, “he is not, and has never been, an enemy of the American people; has never published false information; has not hacked or stolen any of the information he published.”

Many prominent personalities have been in his support including Argentina’s President Alberto Fernández, UK’s ex-Labour Party leader Jeremy Corbyn, leading intellectual Noam Chomsky, and former Ecuadorian President Rafael Correa. Mexican President Andres Manuel Lopez Obrador offered political asylum to Assange, after the US bid for extradition was thwarted on January 4.

Assange's critics include former US Presidential candidate Hillary Clinton and Ecuadorian President Lenin Moreno.

What lies in the law?

Lawyers for Assange, independent international legal observers of the proceedings in the case of Julian Assange, wrote an open letter to British officials to express collective concerns about the violations of Assange’s fundamental human, civil and political rights, and the precedent his persecution is setting.

There is broad international consensus that political offences should not be the basis of extradition, as is reflected in Article 3 of the 1957 European Convention on Extradition, Article 3 of the European Convention on Human Rights, 1950, and Article 3(a) of the UN Model Treaty on Extradition, 1990.

Moreover, the Article 3(f) of this treaty prohibits extradition if the person has not received, or would not receive, the minimum guarantees in criminal proceedings, as enshrined in Article 14 of the International Covenant on Civil and Political Rights, 1966.

Under the principle of non-refoulement, it is said to be impermissible to extradite a person to a country in which there are substantial grounds for believing that they would be subjected to torture. This principle is enshrined in Article 33(1) of the 1951 UN Convention Relating to the Status of Refugees.

Also relevant are Article 3(1) of UN Declaration on Territorial Asylum 1967, and Article 2 of the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe in 1967. As an obligation arising from the prohibition of torture, the principle of non-refoulement is absolute and takes on the nature of a dogmatic standard of customary international law.

The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professor Nils Melzer has expressed with certainty, the letter claimed, that “if extradited to the US, Mr. Assange will be exposed to torture or other cruel, inhuman, or degrading treatment or punishment.

Conclusion

As far as the extradition is concerned, it largely depends upon the political equations between the two countries. Assange’s case can be a serious precedent for national security and the freedom of expression.

The audacity of the US to unlawfully kill high profile foreigners is directly proportional to its ability to fool its citizens in the name of national security. To clarify, citizens began to protest the brutal Vietnam war when they became aware of the slaughter carried out by US forces, for example, the My Lai massacre.

Certainly, Assange has been saved for now, but he is unlikely to be freed anytime soon, and his fight for liberty is far from over. It would be worthwhile to note, how the incoming US President Joe Biden views civilians’ murders, as he considers Assange to be a “hi-tech terrorist.”

(The authors is a third-year student of B.A.LL.B. (Honours) course at Jamia Millia Islamia, New Delhi)

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