London court’s January 4 order blocking Assange’s extradition to the U.S. could mark the beginning of a slow end to his ordeal

At a protest in front of the British embassy in Mexico City to demand the freedom of WikiLeaks founder Julian Assange, on January 4, 2021.

Julian Assange, founder of WikiLeaks, is bracing himself for an appeal by Washington, after a London court, on January 4, blocked his extradition to the U.S., which the British government had authorised in 2019. The man, who has been criminally indicted by the U.S. Department of Justice (DOJ) on 17 counts of violation of the 1917 Espionage Act and one charge of computer hacking, remains under incarceration following the rejection of his plea, on January 6, for release from nearly two years in detention. If found guilty for the publication of classified documents relating to the infamous wars in Afghanistan and Iraq, the conditions of tortured detainees in Guantanamo Bay and the U.S. State Department cables, Assange could face 175 years in prison.

Among campaigners of human rights and freedom of expression, however, the relief that the Australian had earned a welcome reprieve, evidently on health grounds, has given way to dismay over the implications from the verdict for the future of journalism. The judge, Vanessa Baraitser, who declined the U.S. request for extradition, concurred with the arguments of the DOJ that Assange’s activities fell outside the realm of journalism. She was in no doubt, said the judge, that Assange would have access to all the normal constitutional and procedural protections if he faced a trial in the U.S. The judge further determined that handing over Assange to the U.S. would not breach the bar on extradition for political offences. The inference is that Assange would have been liable for trial had the alleged offences been committed in Britain; a chilling prospect for press freedom in the United Kingdom. Some of the conclusions in the judgment are starkly at odds with the stance of campaigners that the charges against Assange were an affront to the U.S. constitution’s First Amendment protections; and their defence, based on the 2003 bilateral treaty ban on the grant of extraditions for political offences.

Vanessa Baraitser, however, adduced two grounds against Assange’s extradition, which have in the past enjoyed strong support in Britain’s parliament and proved decisive with the judiciary. They could once again prove critical in the disposal of the appeal against Assange. The judge ruled that the harsh prison conditions in the U.S. could be detrimental to the defendant’s mental health, as Assange had been diagnosed with an autism spectrum disorder, and that the risk of him committing suicide was substantial. In fact, Assange’s plea on January 6 for bail was declined in part citing the comparatively safe conditions that obtained in British jails.

Two computer hackers were spared extradition to the U.S. by successive Conservative governments under circumstances not entirely dissimilar to Assange’s. In 2012, Gary Mckinnon, who was accused of hacking into the Pentagon and NASA computer networks, was not turned over to the U.S. in view of the acute Asperger’s syndrome he suffered. The U.K. Prime Minister, Boris Johnson, then the Mayor of London, had lauded his predecessor, Theresa May, then Home Secretary, for making the final determination in the case. Boris Johnson would at the very least be expected to show consistency and the same compassion.

By the time another decision was due in 2018 in Britain, the so-called “forum bar” principle in adjudicating extradition cases had taken effect. That rule allows the government to try offenders at home, where that would better serve the interest of justice. The principle has allegedly not been applied consistently, especially in cases relating to offences of Islamist terrorism. It was nevertheless invoked to rescue another computer hacker in 2018.

Indeed, the political case in defence of Assange has been made no less forcefully from several quarters. Soon after the latter’s asylum ended in London’s Ecuador embassy in 2019, Britain’s opposition Labour party leader at the time, Jeremy Corbyn, questioned the extradition of the investigative journalist who had exposed U.S. atrocities committed in Afghanistan and Iraq. His successor, Sir Kier Starmer, who had, as Director of Public Prosecutions in 2012, made the ultimate decision against the extradition of McKinnon, would be expected to play an even more decisive role to influence public opinion in defence of a free press and democracy. The U.N.’s special rapporteur on torture, Nils Melzer, in his plea for presidential pardon, has described Assange as having always acted in the public interest and likened his role to that of any other independent investigative journalist. In 2019, Melzer expressed scepticism over Assange receiving a fair trial in the U.S., besides the risk of serious violations of human rights, a potential sentence for life without parole and even the death penalty. Similar apprehensions were voiced by Agnes Callamard, the U.N.’s special rapporteur on extrajudicial executions.

The January 4 judgment is a bitter sweet moment in the long and arduous battle to secure Assange’s release. In the coming months, it is likely that the appeal to humane grounds arising from Assange’s health prevail over those on the paramountcy of fundamental journalistic freedoms.