U.S. May Have Waited Too Long to Promise Not to Torture Julian Assange, Court Finds

U.S. May Have Waited Too Long to Promise Not to Torture Julian Assange, Court Finds
Protesters supporting Wikileaks founder Julian Assange outside the Supreme Court in London on Jan. 22, 2022. (Photo: Rasid Necati Aslim / Anadolu Agency, Getty Images)

WikiLeaks founder Julian Assange can further escalate his desperate legal battle to avoid extradition to the United States on espionage charges, the New York Times reported, thanks to a UK High Court ruling on Monday that gives him more ammunition to take the fight to the nation’s highest court.

The U.S. has been trying to extradite Assange so he can face 18 charges, including allegedly violating the Espionage Act by leaking embarrassing diplomatic, intelligence, and military secrets via WikiLeaks. After years of legal battles and appeals, Assange is closer to the precipice than ever. The ruling on Monday is very far from a reprieve, but it does give him one more option to petition the Supreme Court of the UK not to drag him over entirely.

Assange famously sought political asylum in the Ecuadorean embassy in London beginning in 2012, when he fled there while trying to dodge a Swedish investigation into accusations of rape. That’s where he remained until 2019, when his hosts decided he had worn out his welcome, revoked his citizenship, and allowed British police to arrest him for bail evasion. The U.S. jumped on the opportunity to launch the extradition process, and the ensuing legal battle has centered on whether prison conditions in the U.S. are so harsh that handing him over would be a violation of his rights. UK courts first sided with Assange, but late last year, the High Court reversed that decision.

That reversal was in part based on the Biden administration pinky-swearing not to subject Assange to what the Times refers to as “the American prison system’s harshest conditions for high-security prisoners” and what most of the rest of the world refers to as torture (“special administrative measures”, or extreme solitary confinement). The U.S. has also said that if Assange petitions to serve out his sentence in Australia, they’ll back the request. Assange’s lawyers have shot back that these promises are conditional and revocable at any time U.S. authorities change their mind, and thus meaningless. One could also reasonably question whether the U.S. won’t just continue its longstanding policy of conveniently redefining torture to mean whatever it isn’t inflicting on detainees at the moment. In any case, Assange has been widely reported to already be in very frail shape in both a physical and mental sense in UK prison, and fears he could die of neglect or by suicide in the U.S. prison system seem far from unfounded.

There’s also the issue of the Espionage Act charges, which civil liberties activists have warned could set a dire precedent in the U.S. regarding whether the First Amendment protects reporting on state secrets. Assange could be fairly said to have gone out of his way to burn whatever hopes he has of being broadly seen as a sympathetic defendant — aside from the since-dropped rape investigation in Sweden, his decision to leak Democratic Party emails during the 2016 election, flirtations with figures tied to Donald Trump’s administration, and general penchant for petulant contrarianism have earned him numerous enemies. No journalist has ever been charged under the Espionage Act in the U.S. before, but even those who don’t consider him a journalist should have grave constitutional concerns about the case.

It’s clear that the U.S. government is basically seeking revenge on Assange and Wikileaks for leaking documents in 2010 that, among other things, revealed it was understating civilian casualties in the Iraq War by tens of thousands, showed U.S. troops slaughtering civilians and laughing about it, and led to the exposure of coverup attempts. The feds have basically declined to explain how the ways that Assange obtained and released this information was meaningfully different in a legal sense than how investigative journalists work every day (ie seeking out secret information from insider sources), and his prosecution could set a precedent that makes those practices criminal.

“The charges rely almost entirely on conduct that investigative journalists engage in every day,” Jameel Jaffer of the Knight First Amendment Institute at Columbia University told the Times. “The indictment should be understood as a frontal attack on press freedom.”

Assange’s appeals have continued unabated. On Monday, according to CNN, Lord Chief Justice Ian Burnett and Lord Justice Timothy Holroyde of the High Court sided with him on one key issue. They found the Supreme Court has never ruled on the matter of whether a higher court could act on assurances ( like the U.S. no-torture promise) that were issued after a case had already proceeded through lower courts. That gives Assange’s team an opening to ask the UK’s highest court to issue a final decision on the appeal.

The Times noted that on Monday, the High Court “did not endorse” an appeal on the separate grounds of whether the U.S. promise was credible. The Supreme Court of the UK has not yet issued any indication as to whether it will actually consider Assange’s appeal, and the Associated Press reported the court says it usually takes eight weeks to reach such a decision after it receives an application.

“What happened in court today is precisely what we wanted to happen,” Stella Morris, Assange’s partner, told the Times in a statement. “… Make no mistake, we won today in court.”

The Times noted that even if the Supreme Court declines to take up the appeal, Assange has other legal options in his arsenal, such as filing additional High Court appeals. As the UK government will ultimately have the final say on whether to go through with the extradition after the legal fight is over, Assange allies could theoretically manage to exert enough political pressure to stop the handover in its tracks at the last minute.

Amnesty International told the BBC it welcomed the decision but remained “concerned” the High Court had “dodged its responsibility” by failing to consider the issue of U.S. torture.

“The courts must ensure that people are not at risk of torture or other ill-treatment,” Massimo Moratti, the deputy director of Amnesty’s European office, told the broadcaster. “This was at the heart of the two other issues the High Court has now effectively vetoed.”